17-4108 Chen v. Barr BIA Christensen, IJ A206 072 210 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 4th day of November, two thousand nineteen. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 RAYMOND J. LOHIER, JR., 10 RICHARD J. SULLIVAN, 11 Circuit Judges. 12 _____________________________________ 13 14 YI CHEN, 15 Petitioner, 16 17 v. 17-4108 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Adedayo O. Idowu, New York, NY. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant 27 Attorney General; Paul Fiorino, 28 Senior Litigation Counsel, Judith 29 R. O’Sullivan, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 32 Justice, 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 Yi Chen, a native and citizen of the People’s

6 Republic of China, seeks review of a November 27, 2017,

7 decision of the BIA affirming a March 6, 2017, decision of an

8 Immigration Judge (“IJ”) denying asylum, withholding of

9 removal, and relief under the Convention Against Torture

10 (“CAT”). In re Yi Chen, No. A206 072 210 (B.I.A. Nov. 27,

11 2017), aff’g No. A206 072 210 (Immig. Ct. N.Y. City Mar. 6,

12 2017). We assume the parties’ familiarity with the

13 underlying facts and procedural history in this case.

14 Under the circumstances of this case, we have reviewed

15 both the IJ’s and the BIA’s opinions “for the sake of

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

524, 528 (2d Cir. 2006). The applicable standards of review

18 are well established. See

(b)(4)(B); Hong Fei

19 Gao v. Sessions,

(2d Cir. 2018).

20 “Considering the totality of the circumstances, and all

21 relevant factors, a trier of fact may base a credibility

22 determination on the demeanor, candor, or responsiveness of

23 the applicant . . . , the consistency between the applicant’s 2 1 . . . written and oral statements . . . , the internal

2 consistency of each such statement, the consistency of such

3 statements with other evidence of record . . . without regard

4 to whether an inconsistency, inaccuracy, or falsehood goes to

5 the heart of the applicant’s claim, or any other relevant

6 factor.”

(b)(1)(B)(iii). “We defer . . . to

7 an IJ’s credibility determination unless, from the totality

8 of the circumstances, it is plain that no reasonable fact-

9 finder could make such an adverse credibility ruling.” Xiu

10 Xia Lin v. Mukasey,

(2d Cir. 2008); accord

11 Hong Fei Gao,

. Substantial evidence supports

12 the agency’s determination that Chen was not credible as to

13 his claim that police officers detained and beat him on

14 account of his practice of Christianity or that he feared

15 future persecution because he was a practicing Christian in

16 the United States.

17 The IJ found that Chen’s demeanor detracted from his

18 credibility because he paused numerous times when answering

19 even basic questions and sometimes did not answer at all.

20 The IJ may base a credibility determination on the “demeanor,

21 candor, or responsiveness” of the applicant. 8 U.S.C.

22 § 1158(b)(1)(B)(iii). The record supports the IJ’s finding.

23 Chen failed to respond or had lengthy pauses in answering 3 1 basic questions, such as whether the police stated why they

2 were raiding his unregistered church in China and how long he

3 had attended his church in the United States. We defer to

4 the IJ’s findings based on his observation of Chen’s demeanor,

5 see Jin Chen v. U.S. Dep’t of Justice,

(2d

6 Cir. 2005), particularly where, as discussed below, the

7 findings are supported by inconsistencies, see Li Hua Lin v.

8 U.S. Dep’t of Justice,

(2d Cir. 2006) (“We

9 can be still more confident in our review of observations

10 about an applicant’s demeanor where, as here, they are

11 supported by specific examples of inconsistent testimony.”).

12 The agency reasonably relied on Chen’s inconsistent

13 statements about being required to report to the police in

14 China and his internally inconsistent testimony about his

15 church attendance in the United States. See 8 U.S.C.

16 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin,

-

17 67. Chen’s application and his wife’s letter stated, without

18 more, that he was under “police surveillance.” Chen then

19 testified that he was required to report to the police once

20 or twice every week. Although Chen argues that the two

21 descriptions refer to the same facts, the IJ reasonably

22 concluded that the reporting requirement was a significant

23 fact that Chen would be expected to include in the 4 1 application. See Hong Fei Gao, 891 F.3d at 78–79 (weight

2 given to an omission depends, in part, on whether “facts are

3 ones that a credible petitioner would reasonably have been

4 expected to disclose under the relevant circumstances”); see

5 also Lianping Li v. Lynch,

(2d Cir. 2016)

6 (holding that while “applicants are not required to list every

7 incident” in an application, the agency does not err in

8 relying on differing descriptions).

9 Chen was also inconsistent about his church attendance

10 in the United States, first testifying that he regularly

11 attends church on Sundays, then stating it was on Mondays,

12 and offering no explanation for the inconsistency. Although

13 Chen argues that this inconsistency is immaterial, an IJ may

14 rely on even tangential inconsistencies. See Xiu Xia Lin,

15

(“[A]n IJ may rely on any inconsistency . . .

16 as long as the totality of the circumstances establishes that

17 an asylum applicant is not credible.” (emphasis in

18 original)).

19 Having questioned Chen’s credibility, the agency

20 reasonably relied on his failure to rehabilitate his

21 testimony with reliable corroborating evidence. “An

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

23 bear on credibility, because the absence of corroboration in 5 1 general makes an applicant unable to rehabilitate testimony

2 that has already been called into question.” Biao Yang v.

3 Gonzales,

(2d Cir. 2007). As the IJ found,

4 Chen did not corroborate his attendance of church in China or

5 in the United States. His unsupported assertions that no one

6 would testify or provide letters from either of his churches

7 is insufficient to compel a reasonable fact-finder to

8 conclude “that such corroborating evidence is unavailable.”

9

(b)(4). And though he argues that the IJ did

10 not consider his explanations, the IJ did refer to them, but

11 did not find them reasonable. The IJ was not compelled to

12 credit the explanations. See Majidi v. Gonzales,

(2d Cir. 2005) (“A petitioner must do more than offer

14 a plausible explanation for his inconsistent statements to

15 secure relief; he must demonstrate that a reasonable fact-

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

17 quotations omitted and emphasis in original)).

18 Accordingly, given the IJ’s consideration of Chen’s

19 demeanor, the discrepancies within Chen’s statements and with

20 the letter from his wife, and the lack of corroboration of

21 his practice of Christianity, the adverse credibility

22 determination is supported by substantial evidence. See

23

(b)(1)(B)(iii); Xiu Xia Lin,

. 6 1 That determination is dispositive of asylum, withholding of

2 removal, and CAT relief because all three claims are based on

3 the same factual predicate. See Paul v. Gonzales,

(2d Cir. 2006).

5 For the foregoing reasons, the petition for review is

6 DENIED. All pending motions are DENIED and stays VACATED.

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court

7