Xueling Chen v. Holder
Opinion
SUMMARY ORDER
Xueling Chen, a native and citizen of the People’s Republic of China, seeks review of a January 29, 2013, decision of the BIA affirming an Immigration Judge’s (“IJ”) August 11, 2011, decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xueling Chen, A087 633 206 (B.I.A. Jan. 29, 2013), aff'g No. A087 633 206 (Immig. Ct. N.Y. City Aug. 11, 2011). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
Under the circumstances of this case, we have reviewed the decision of the IJ as modified and supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan *622 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
For applications such as Chen’s, governed by the REAL ID Act of 2005, the agency may, “[c]onsidering the totality of the circumstances,” base a credibility finding on the applicant’s “demeanor, candor, or responsiveness,” the plausibility of her account, and inconsistencies in her statements, regardless of whether such inconsistencies go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). We “defer to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make” such a ruling. Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
Here, the IJ reasonably based his adverse credibility determination on Chen’s inconsistent testimony, inconsistencies between her testimony and that of her uncle, and her omission of information from her asylum application. As the agency found, Chen gave confusing and inconsistent testimony regarding her passports, initially stating that she only ever had three passports, but later testifying that she obtained a fourth passport, a copy of which she used to obtain a fifth passport while she was in the United States. In addition, although Chen testified to obtaining the fifth passport in May 2009, her July 2009 asylum application passport in May 2009, her July 2009 asylum application stated she did not have a passport. The agency also reasonably relied on inconsistencies between the testimony of Chen and her witness. For example, Chen testified that she had never been to Alabama, contradicting her uncle’s testimony that she worked for months in his Alabama restaurant. While tangential to Chen’s asylum claim, these inconsistencies are numerous and, considering the totality of the circumstances, support the agency’s adverse credibility determination. See 8 U.S.C. §§ 1158(b)(l)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167 (providing that an IJ may support an adverse credibility determination "with “any inconsistency or omission”); Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“a single instance of false testimony may ... infect the balance of the alien’s uncorroborated or unauthenticated evidence”).
Moreover, the agency reasonably rejected Chen’s explanation that she was confused by the aggressive questioning by the IJ and government attorney. The agency reasonably found that the record does not reflect questioning that was overly persistent, but simply efforts by the IJ and attorney to elicit responsive answers to their questions. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
As to demeanor, we defer to the IJ’s finding that Chen’s hesitant and evasive testimony affected her credibility as that finding was connected to Chen’s confusing and inconsistent testimony regarding her passports. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).
Given these inconsistencies and Chen’s hesitant demeanor, the totality of the circumstances supports the agency’s adverse credibility determination. Although Chen submitted corroborating letters from her relatives and a photograph purportedly of her practicing Falun Gong, the IJ reasonably found that evidence insufficient to establish her eligibility for relief absent credible testimony, as the authors were not available for cross-examination and Chen could not identify the origin of the photograph. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (the weight accorded to documentary evidence lies largely within agency’s discretion); see also Matter of H-L-H & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (giving diminished evidentiary *623 weight to letters from “relatives and friends,” because they were from interested witnesses not subject to cross-examination), abrogated on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).
As the only evidence of a threat to Chen’s life or freedom, or likelihood of torture, depended upon her credibility, the adverse credibility determination necessarily precludes success on her claims for asylum, withholding of removal, and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED.
Reference
- Full Case Name
- XUELING CHEN, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent
- Status
- Unpublished