17-252 Chen v. Sessions BIA Nelson, IJ A087 785 292 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 5th day of June, two thousand eighteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 JOSÉ A. CABRANES, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 YAN QI CHEN, 14 Petitioner, 15 16 v. 17-252 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: G. Victoria Calle, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Linda S. 27 Wernery, Assistant Director; 28 Thankful T. Vanderstar, Trial 29 Attorney, Office of Immigration 1 Litigation, United States 2 Department of Justice, Washington, 3 DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DENIED.

9 Petitioner Yan Qi Chen, a native and citizen of the

10 People’s Republic of China, seeks review of a January 12,

11 2017, decision of the BIA affirming a March 22, 2016, decision

12 of an Immigration Judge (“IJ”) denying Chen’s application for

13 asylum, withholding of removal, and relief under the

14 Convention Against Torture (“CAT”). In re Yan Qi Chen, No.

15 A 087 785 292 (B.I.A. Jan. 12, 2017), aff’g No. A 087 785 292

16 (Immig. Ct. N.Y. City Mar. 22, 2016). We assume the parties’

17 familiarity with the underlying facts and procedural history

18 in this case.

19 We have reviewed the IJ’s decision as modified by the

20 BIA, reaching only the bases for the adverse credibility

21 ruling that the BIA adopted. See Xue Hong Yang v. U.S. Dep’t

22 of Justice,

(2d Cir. 2005). We review the

23 agency’s factual findings, including its adverse credibility 2 1 determination, for substantial evidence. See 8 U.S.C.

2 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,

, 165-

3 66 (2d Cir. 2008).

4 I. Adverse Credibility

5 The agency may, “[c]onsidering the totality of the

6 circumstances,” base an adverse credibility ruling on an

7 applicant’s “demeanor, candor, or responsiveness,” as well as

8 any inconsistencies within or between an applicant’s and

9 witness’s written and oral statements. 8 U.S.C.

10 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility

11 determination unless . . . it is plain that no reasonable

12 fact-finder could make such an adverse credibility ruling.”

13 Xiu Xia Lin,

.

14 Substantial evidence supports the agency’s determination

15 that Chen’s testimony regarding the events in China was not

16 credible. The agency reasonably relied on the lack of

17 consistency between Chen’s testimony that he was arrested for

18 attending an underground church in 2007, and his application,

19 which identified his arrest as occurring in 2008. The agency

20 noted that this inconsistency may have been attributable to

21 an innocent cause such as nervousness, but it was compounded 3 1 by Chen’s testimony that his wife’s forced abortion took place

2 in 2006. This testimony contradicted his application as well

3 as his wife’s testimony and letter, which gave the date of

4 the abortion as November 2007. The agency reasonably

5 determined that Chen’s inability to remember the relevant

6 years of the two events that formed the basis of his claim

7 undermined his credibility. See Xian Tuan Ye v. Dep’t of

8 Homeland Sec.,

(2d Cir. 2006) (“[A] material

9 inconsistency in an aspect of [an applicant]’s story that

10 served as an example of the very persecution from which he

11 sought asylum . . . afforded substantial evidence to support

12 the adverse credibility finding.” (internal quotation marks

13 and citation omitted)). The negative demeanor finding, based

14 on Chen’s multiple long pauses and difficulty answering

15 questions, further supports the adverse credibility ruling.

16 See

(b)(1)(B)(iii); Li Hua Lin v. U.S. Dep’t

17 of Justice,

(2d Cir. 2006) (granting

18 particular deference to credibility findings based on

19 applicant’s demeanor).

20 Because the adverse credibility ruling is dispositive of

21 Chen’s past persecution claims, we do not reach the agency’s 4 1 alternative ruling that even if Chen is credible, the harm

2 Chen testified to did not rise to the level of persecution.

3 INS v. Bagamasbad,

(1976) (“As a general rule

4 courts and agencies are not required to make findings on

5 issues the decision of which is unnecessary to the results

6 they reach.”).

7 II. Well-Founded Fear

8 The agency accepted that Chen currently practices

9 Christianity in the United States. To establish a well-

10 founded fear of persecution on this basis, Chen was required

11 to show that the Chinese government is “either aware . . .

12 or likely to become aware” of his practice of Christianity.

13 Hongsheng Leng v. Mukasey,

(2d Cir. 2008).

14 Chen argues that he met this burden by showing a pattern or

15 practice of persecution of Christians who are similarly

16 situated to him. See

(b)(2)(iii).

17 However, we decline to reach Chen’s pattern or practice claim

18 because, as the Government argues, he did not adequately raise

19 it before the IJ or BIA. See Lin Zhong v. U.S. Dep’t of

20 Justice,

(2d Cir. 2007) (providing that

21 judicially imposed issue exhaustion is mandatory); Foster v. 5 1 U.S. INS,

(2d Cir. 2004) (issues must

2 generally be raised before the BIA in order to be preserved

3 for judicial review).

4 For the foregoing reasons, the petition for review is

5 DENIED. As we have completed our review, any stay of removal

6 that the Court previously granted in this petition is VACATED,

7 and any pending motion for a stay of removal in this petition

8 is DISMISSED as moot. Any pending request for oral argument

9 in this petition is DENIED in accordance with Federal Rule of

10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

11 34.1(b).

12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court

6