Duan Hang Chen v. Holder
Duan Hang Chen v. Holder
Opinion of the Court
SUMMARY ORDER
Petitioner Duan Hang Chen, a citizen of the People’s Republic of China, seeks review of a September 5, 2008 order of the BIA affirming the January 9, 2008 decision of Immigration Judge (“IJ”) Gabriel C. Videla denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Duan Hang Chen, No. A200 038 887 (B.I.A. Sept. 5, 2008), aff'g No. A200 038 887 (Immig. Ct. N.Y. City, Jan. 9, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
Where, as here, the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir. 2007). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
For applications governed by the amendments to the Immigration and Nationality Act by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
The agency’s adverse credibility finding was supported by substantial evidence,
The IJ also observed that contrary to Petitioner’s asylum claim, he stated to a border patrol agent upon his arrival that he had come to the "United States to seek employment. While the agency must recognize that an applicant may not be entirely forthcoming in an initial interview “because those most in need of asylum may be the most wary of governmental authorities,” Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005) (quoting Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004)), Petitioner does not argue that he was afraid to tell the truth.
Because the IJ found multiple reasons why Petitioner was not credible, it was not improper under the provisions of the REAL ID Act for the IJ to rely additionally on the absence of available evidence which may have corroborated Petitioner’s alleged practice of Falun Gong. See 8 U.S.C. § 1158(b)(1)(B)(ii); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir . 2006).
The foregoing findings demonstrate that the agency’s adverse credibility determination was supported by substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin, 534 F.3d at 165-66. Accordingly, the agency’s denial of Petitioner’s application for asylum was not improper. Likewise, the agency properly denied his application for withholding of removal and CAT relief because the only evidence that Petitioner would be persecuted or tortured depended on his credibility.
For the foregoing reasons, the petition for review is DENIED. As we have 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 DISMISSED 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(b).
. There is no indication that the agency ignored our decision in Ramsameachire in evaluating the record of Petitioner's initial interview at the border. See 357 F.3d at 178-80. Rather, the IJ examined that record, noted that Petitioner signed the statement, and examined any possible motivations for the border patrol agent to have created a false response as to Petitioner’s reason for coming to the United States.
. Petitioner has waived any argument that he would be tortured for having illegally departed China. See Yueqing Zhang, 426 F.3d at 541 n. 1, 545 n. 7.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.