17-2340 Chen v. Barr BIA Wright, IJ A206 071 811

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 29th day of October, two thousand nineteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 PETER W. HALL, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 YING CHEN, 14 15 Petitioner, 16 17 v. 17-2340 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Gary J. Yerman, New York, NY. 26 27 FOR RESPONDENT: Chad A. Readler, Acting Assistant 28 Attorney General; Carly McIntyre, 1 Assistant Director; Nancy E. 2 Friedman, Senior Litigation 3 Counsel, Office of Immigration 4 Litigation, United States 5 Department of Justice, Washington, 6 DC. 7 8 UPON DUE CONSIDERATION of this petition for review of a

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

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

11 is DISMISSED in part, and DENIED in part.

12 Petitioner Ying Chen, a native and citizen of China,

13 seeks review of a July 12, 2017, decision of the BIA affirming

14 an October 6, 2016, decision of an Immigration Judge (“IJ”)

15 denying asylum, withholding of removal, and relief under the

16 Convention Against Torture (“CAT”). In re Ying Chen, No.

17 A206 071 811 (B.I.A. Jul. 12, 2017), aff’g No. A206 071 811

18 (Immig. Ct. N.Y. City Oct. 6, 2016). We assume the parties’

19 familiarity with the underlying facts and procedural history

20 in this case.

21 Under the circumstances of this case, we have considered

22 both the IJ’s and the BIA’s decisions “for the sake of

23 completeness.” Wangchuck v. Dep’t of Homeland Sec.,

(2d Cir. 2006).

25

26 2 1 Asylum – One-Year Filing Deadline

2 An alien is ineligible for asylum “unless the alien

3 demonstrates by clear and convincing evidence that the

4 application has been filed within 1 year after the date of

5 the alien’s arrival in the United States.” 8 U.S.C.

6 § 1158(a)(2)(B). Our jurisdiction to review the agency’s

7 findings regarding the timeliness of an asylum application is

8 limited to constitutional claims or questions of law. See 8

9

(a)(3), 1252(a)(2)(D). Such claims and

10 questions must be colorable. Barco-Sandoval v. Gonzales, 516

, 40-41 (2d Cir. 2008); Xiao Ji Chen v. U.S. Dep’t of

12 Justice,

(2d Cir. 2006). Chen raises no

13 colorable questions of law.

14 Chen contends that the agency erred in relying on her

15 divorce decree as evidence that she may have been in the

16 United States as early as 2012. She argues that the word

17 “America” in the decree could have meant Mexico, and that (in

18 any event) the date was the result of her mother’s error.

19 While a serious mischaracterization of the record may

20 constitute legal error, the alleged error of law is not

21 colorable because the record supports the agency’s

22 interpretation. See Mendez v. Holder,

(2d

3 1 Cir. 2009). Chen never testified that she worked while in

2 Mexico; she generally referred to the United States as

3 America; and she never used America to refer to Mexico. See

4 Siewe v. Gonzales,

(2d Cir. 2007) (“Where

5 there are two permissible views of the evidence, the

6 factfinder’s choice between them cannot be clearly

7 erroneous.” (quoting Anderson v. Bessemer City,

,

8 574 (1985))). To the extent she challenges the agency’s

9 reliance on her mother’s mistake, she is arguing over the

10 weight the agency gave the evidence, which we lack

11 jurisdiction to review. See Xiao Ji Chen,

,

12 342.

13 Withholding and CAT – Adverse Credibility

14 There is no time restriction for seeking withholding of

15 removal and CAT relief. The agency denied that relief on

16 credibility grounds, which we review for substantial

17 evidence. See

(b)(4)(B); Hong Fei Gao v.

18 Sessions,

(2d Cir. 2018). “Considering the

19 totality of the circumstances, and all relevant factors, a

20 trier of fact may base a credibility determination on . . .

21 the consistency between the applicant’s . . . written and

22 oral statements . . . , the internal consistency of each such

4 1 statement, [and] the consistency of such statements with

2 other evidence of record . . . without regard to whether an

3 inconsistency, inaccuracy, or falsehood goes to the heart of

4 the applicant’s claim, or any other relevant factor.”

5

(b)(1)(B)(iii). “We defer . . . to an IJ’s

6 credibility determination unless, from the totality of the

7 circumstances, it is plain that no reasonable fact-finder

8 could make such an adverse credibility ruling.” Xiu Xia Lin

9 v. Mukasey,

(2d Cir. 2008); accord Hong Fei

10 Gao,

. The adverse credibility determination

11 is supported by substantial evidence.

12 The agency reasonably relied on Chen’s varying

13 descriptions of the incident in which family planning

14 authorities attempted to transport her to the hospital for

15 sterilization. See

(b)(1)(B)(iii). Her

16 asylum application, interview, and testimony gave three

17 different locations for where she was when the authorities

18 came and were inconsistent about who followed her. And her

19 testimony included details of a physical altercation between

20 authorities and her family members that were omitted from her

21 asylum statement. See Ming Zhang v. Holder,

,

22 726 (2d Cir. 2009) (holding that the agency may “draw an

5 1 adverse inference about petitioner’s credibility based, inter

2 alia, on her failure to mention” important details or events

3 in prior statements); Lianping Li v. Lynch,

, 150

4 (2d Cir. 2016) (upholding adverse credibility determination

5 where “application did not simply omit incidents of

6 persecution . . . [but rather] described the same incidents

7 of persecution differently”). Chen had no compelling

8 explanations for these discrepancies. See Majidi v.

9 Gonzales,

(2d Cir. 2005) (“A petitioner must

10 do more than offer a plausible explanation for h[er]

11 inconsistent statements to secure relief; [s]he must

12 demonstrate that a reasonable fact-finder would be compelled

13 to credit h[er] testimony.” (internal quotation marks

14 omitted)). Although the agency should not rely too heavily

15 on minor omissions, the information Chen added about her

16 family’s resistance did not merely supplement her account but

17 amounted to a different, more aggressive version of the event.

18 See Hong Fei Gao,

(holding that “probative

19 value of a witness’s prior silence on particular facts depends

20 on whether those facts are ones the witness would reasonably

21 have been expected to disclose” and that “[o]missions need

22 not go to the heart of a claim to be considered in adverse

6 1 credibility determinations, but they must still be weighed in

2 light of the totality of the circumstances and in the context

3 of the record as a whole.”).

4 Having questioned Chen’s credibility, the agency

5 reasonably relied on her failure to rehabilitate her

6 testimony with reliable corroborating evidence. See Biao

7 Yang v. Gonzales,

(2d Cir. 2007) (“An

8 applicant’s failure to corroborate his or her testimony may

9 bear on credibility, because the absence of corroboration in

10 general makes an applicant unable to rehabilitate testimony

11 that has already been called into question.”). The agency

12 declined to afford significant weight to letters from Chen’s

13 mother and friend in China. That was not error because the

14 letters lacked detail, and the authors were unavailable for

15 cross-examination. See Y.C. v. Holder,

,

16 334 (2d Cir. 2013) (holding that “[w]e generally defer to the

17 agency’s evaluation of the weight to be afforded an

18 applicant’s documentary evidence” and deferring to agency’s

19 decision to afford little weight to spouse’s letter). Chen’s

20 mother’s letter also was inconsistent with Chen’s account of

21 her escape from the family planning officials: Chen said she

22 ran away after convincing the officials to stop the van;

7 1 Chen’s mother’s account suggests that Chen escaped during the

2 altercation between authorities and family members at the

3 house.

4 Given the multiple inconsistencies and the lack of

5 reliable corroboration, the adverse credibility determination

6 is supported by substantial evidence. See Xiu Xia Lin, 534

7 F.3d at 165-66. That determination is dispositive of

8 withholding of removal and CAT relief because both claims are

9 based on the same factual predicate. See Paul v. Gonzales,

10

(2d Cir. 2006).

11 For the foregoing reasons, the petition for review is

12 DISMISSED as to the asylum claim, and DENIED in remaining

13 part. As we have completed our review, any stay of removal

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

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

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

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

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

19 34.1(b).

20 FOR THE COURT: 21 Catherine O’Hagan Wolfe 22 Clerk of Court

8