Yu Juan Chen v. Gonzales
Opinion of the Court
SUMMARY ORDER
UPON DUE CONSIDERATION of this petition for review of the order of the Board of Immigration Appeals (“BIA”), IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the petition for review is DENIED.
Yu Juan Chen petitions for review of the September 21, 2004 order of the BIA affirming the decision of the immigration judge (“IJ”) to deny her application for asylum, withholding of removal and relief under the Convention against Torture (“CAT”). Familiarity with the facts and the procedural history of the case is presumed.
Chen contends that the BIA incorrectly affirmed the IJ’s denial of her claim for asylum and relief under CAT and that the IJ’s adverse credibility determination was not supported by substantial evidence.
This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Jin Hui Gao v. United States Att’y Gen., 400 F.3d 963, 964 (2d Cir. 2005); Zhou Yun Zhang v. INS, 386 F.3d 66, 73; Ramsameachire v. Ashcroft, 357 F.3d 169, 177 (2d Cir. 2004); Secaida-Rosales v. INS, 331 F.3d 297, 306-07 (2d Cir. 2003); Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000).
The IJ’s adverse credibility finding was supported by substantial evidence. The IJ correctly pointed out the inconsistencies between the statements Chen made at the interviews and in her application and the statements made during the hearing. This Court has recognized that, in evaluating statements made at airport interviews, an alien may not be completely forthcoming. See Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005). Because an
Another significant inconsistency was that, while Chen initially indicated that she had been forced to undergo an IUD insertion on two separate occasions, she testified at the hearing that she had had such an insertion on only one occasion. Since the authorities’ actions taken against Chen pursuant to the family planning policy went to the heart of her asylum claim, this inconsistency was material. See id. The IJ also properly found that Chen’s testimony had been confusing and vague with respect to her detention. Despite the IJ’s repeated efforts to elicit further detail and clarify Chen’s account, Chen was unable to coherently or consistently describe her detention or state whether such had even occurred. See Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 152 & n. 6 (2d Cir. 2003) (noting, in dicta, that the lack of detail in testimony may call into question the credibility of an applicant’s testimony and may provide an opportunity for counsel or the IJ to probe for more detail, but simultaneously declining to hold that sparse testimony is a proper basis for finding incredibility or that affirmative probing is a prerequisite to finding incredibility).
The IJ also did not place improper or excessive reliance on the State Department profile, as cautioned by this Court in Tian-Yong Chen v. INS, 359 F.3d 121, 130 (2d Cir. 2004). The IJ merely pointed out that, based on the report that violations of the family planning policy often precluded enjoyment of social benefits, such as registration and school attendance, it was inconsistent that Chen had been able to obtain various documents and enjoy such benefits. This reliance was thus “part of [the IJ’s] overall determination that [Chen’s] account was not credible.” Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144, 165 (2d Cir. 2006). Moreover, with the exception of stating that the identification had been issued before she had gone into hiding, Chen failed to clearly respond to the IJ’s request for an explana
Because Chen has not made any argument regarding her withholding of removal claim, that claim is deemed waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1 (2d Cir. 2005) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal” (quotation omitted)).
Contrary to Chen’s assertion, the IJ properly engaged in an independent evaluation of the claim for relief under CAT when he made an alternative finding based on the assumption that Chen was credible. He properly found that there had been no evidence showing that it was more likely than not that Chen would be tortured if she returned to China, especially given the absence of any mention of a fear of future sterilization during her testimony.
For the foregoing reasons, the petition for review is DENIED. Having completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DENIED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1).
Reference
- Full Case Name
- Yu Juan CHEN v. Alberto R. GONZALES, Attorney General
- Status
- Published