17-1147 Chen v. Whitaker BIA Poczter, IJ A201 297 506

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 14th day of January, two thousand nineteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 DENNIS JACOBS, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 ZHI YAO CHEN, 14 Petitioner, 15 16 v. 17-1147 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: David A. Bredin, Flushing, 24 NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Jeffery Leist, 28 Senior Litigation Counsel; Raya 29 Jarawan, Trial Attorney; Abigail 30 E. Leach, Law Clerk, Office of 31 Immigration Litigation, United 32 States Department of Justice, 33 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 Petitioner Zhi Yao Chen, a native and citizen of the

6 People’s Republic of China, seeks review of the March 28,

7 2017, and May 15, 2015, decisions of the BIA affirming the

8 June 6, 2016, and April 17, 2013, decisions of an Immigration

9 Judge (“IJ”), which denied Chen’s application for asylum,

10 withholding of removal, and relief under the Convention

11 Against Torture (“CAT”) on credibility grounds. In re Zhi

12 Yao Chen, No. A201 297 506 (B.I.A. March 28, 2017 and May 15,

13 2015), aff’g No. A201 297 506 (Immig. Ct. N.Y. City June 6,

14 2016 and Apr. 17, 2013). We assume the parties’ familiarity

15 with the underlying facts and procedural history in this case.

16 We have reviewed the IJ’s decisions as modified by the

17 BIA’s decisions, and address only the adverse credibility

18 determination. See Xue Hong Yang v. U.S. Dep’t of Justice,

19

(2d Cir. 2005). The applicable standards

20 of review are well established. See Xiu Xia Lin v. Mukasey,

21

(2d Cir. 2008).

22 “Considering the totality of the circumstances, and all

23 relevant factors, a trier of fact may base a credibility 2 1 determination on the demeanor, candor, or responsiveness of

2 the applicant or witness, . . . the consistency between the

3 applicant’s or witness’s written and oral statements . . . ,

4 the internal consistency of each such statement, [and] the

5 consistency of such statements with other evidence of record

6 . . . .”

(b)(1)(B)(iii). Substantial

7 evidence supports the agency’s determination that Chen was

8 not credible as to his claims that he was detained and beaten

9 in China for attending a family church, and that he fears

10 future persecution on account of his religious practice in

11 the United States.

12 The agency reasonably relied in part on Chen’s demeanor.

13 See

(b)(1)(B)(iii); Majidi v. Gonzales, 430

, 81 n.1 (2d Cir. 2005) (recognizing that particular

15 deference is given to the trier of fact’s assessment of

16 demeanor). The IJ provided specific examples to support the

17 demeanor finding, noting that Chen had difficulty answering

18 questions by his own attorney and became more incoherent on

19 cross examination when asked for details about the community

20 service that the Chinese authorities required him to do after

21 his arrest.

22 The demeanor finding and the overall credibility

23 determination are bolstered by record inconsistencies. See 3 1 Li Hua Lin v. U.S. Dep’t of Justice,

(2d

2 Cir. 2006). The agency reasonably found that Chen’s

3 testimony was inconsistent regarding (1) whether he performed

4 mandated community service and the nature of the service,

5 (2) when he was arrested in China, and (3) when he left China.

6 The agency also reasonably found that Chen and his witness

7 were inconsistent about when they met and when they saw each

8 after the witness started her own church. The agency was not

9 compelled to credit Chen’s explanations for these

10 inconsistencies. See

(b)(1)(B)(iii); see

11 also Majidi, 430 F.3d at 80 (“A petitioner must do more than

12 offer a plausible explanation for his inconsistent statements

13 to secure relief; he must demonstrate that a reasonable fact-

14 finder would be compelled to credit his testimony.” (internal

15 quotation marks omitted)).

16 Although the agency may have placed too much weight on

17 minor inconsistencies in Chen’s descriptions of the weapon

18 the police used to beat him, even assuming error, remand would

19 be futile because Chen’s otherwise inconsistent statements

20 about when he left China, the nature and frequency of his

21 mandatory community service, and the timeline of his

22 interactions with his witness after she left his church

23 substantially undermine his claim. See Lianping Li v. Lynch, 4 1

(2d Cir. 2016) (holding that remand is

2 futile if the error-free findings are sufficiently strong and

3 significant such that the Court can be confident that the

4 agency would reach the same decision on remand).

5 Further, the agency properly determined that Chen’s

6 failure to corroborate his testimony affected his

7 credibility. See Biao Yang v. Gonzales,

, 273

8 (2d Cir. 2007) (“An applicant’s failure to corroborate his

9 or her testimony may bear on credibility, because the

10 absence of corroboration in general makes an applicant

11 unable to rehabilitate testimony that has already been

12 called into question.”). The agency was not required to

13 give weight to a letter from Chen’s father, Y.C. v. Holder,

14

(2d Cir. 2013) (deferring to agency’s

15 decision to afford little weight to petitioner’s husband’s

16 letter), and Chen does not dispute that he did not attempt

17 to obtain other reasonably available evidence, see 8 U.S.C.

18 § 1158(b)(1)(B)(ii) (providing that even if testimony is

19 credible, applicant must present corroborating evidence if

20 IJ finds it necessary and evidence is reasonably

21 available).

22 Given the demeanor, inconsistency, and lack of

23 corroboration findings, the agency’s adverse credibility 5 1 determination is supported by substantial evidence. See 8

2

(b)(1)(B)(iii). Contrary to Chen’s argument

3 that the agency failed to independently evaluate the

4 country conditions relevant to his CAT claim, the adverse

5 credibility determination was dispositive of asylum,

6 withholding of removal, and CAT relief because all three

7 forms of relief relied on the same factual predicate. See

8 Paul v. Gonzales,

(2d Cir. 2006).

9 For the foregoing reasons, the petition for review is

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

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

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

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

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

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

16 34.1(b).

17 FOR THE COURT: 18 Catherine O’Hagan Wolfe 19 Clerk of Court 20

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