17-4103 Chen v. Barr BIA Leeds, IJ A206 067 415

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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 20th day of November, two thousand nineteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 REENA RAGGI, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 _____________________________________ 12 13 XUEJIAO CHEN, 14 Petitioner, 15 16 v. 17-4103 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Troy Nader Moslemi, Flushing, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; John S. Hogan, 27 Assistant Director; Rebecca 28 Hoffberg Phillips, Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of 31 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 Xuejiao Chen, a native and citizen of the

6 People’s Republic of China, seeks review of a December 5,

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

8 of an Immigration Judge (“IJ”) denying her application for

9 asylum, withholding of removal and relief under the

10 Convention Against Torture (“CAT”). In re Xuejiao Chen, No.

11 A206 067 415 (B.I.A. Dec. 5, 2017), aff’g No. A206 067 415

12 (Immig. Ct. N.Y. City Mar. 6, 2017). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case.

15 Chen raises only withholding of removal and CAT relief

16 in this Court. We have reviewed both the IJ’s and BIA’s

17 decisions denying relief on credibility grounds. See

18 Wangchuck v. DHS,

(2d Cir. 2006). The

19 applicable standards of review are well established. See

20

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

67, 76 (2d Cir. 2018).

22 “Considering the totality of the circumstances, and all

2 1 relevant factors, a trier of fact may base a credibility

2 determination on the demeanor, candor, or responsiveness of

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

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

5 [and] the internal consistency of each such statement . . .

6 without regard to whether an inconsistency, inaccuracy, or

7 falsehood goes to the heart of the applicant’s claim . . . .”

8

(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534

(2d Cir. 2008). Substantial evidence

10 supports the agency’s determination that Chen was not

11 credible as to her claim that police detained and beat her on

12 account of her Falun Gong practice and that she continues to

13 practice Falun Gong in the United States.

14 The agency reasonably relied in part on Chen’s demeanor,

15 noting that her testimony was evasive. See 8 U.S.C.

16 § 1158(b)(1)(B)(iii); Majidi v. Gonzales,

, 81 n.1

17 (2d Cir. 2005) (recognizing that particular deference is

18 given to the trier of fact’s assessment of demeanor). The

19 demeanor finding is supported by the record, which reflects

20 that Chen repeatedly avoided answering questions the answers

21 to which would have been detrimental to her application.

22 The demeanor finding and overall credibility

3 1 determination are bolstered by record inconsistencies. See

2 Li Hua Lin v. U.S. Dep’t of Justice,

(2d

3 Cir. 2006). Chen testified inconsistently and ultimately

4 admitted lying about her state of residence in the United

5 States. Further, Chen and her witnesses testified

6 inconsistently about Chen’s practice of Falun Gong. These

7 inconsistencies were not compellingly explained. See

8 Majidi,

.

9 Having questioned Chen’s credibility, the agency

10 reasonably relied further on her failure to submit reliable

11 corroborating evidence. “An applicant’s failure to

12 corroborate his or her testimony may bear on credibility,

13 because the absence of corroboration in general makes an

14 applicant unable to rehabilitate testimony that has already

15 been called into question.” Biao Yang v. Gonzales, 496

(2d Cir. 2007). Chen did not corroborate

17 medical treatment she received in China for either the

18 chronic health issues that purportedly prompted her to

19 practice Falun Gong or for the harm she claimed to have

20 suffered in detention. Nor did she submit evidence that

21 her parents had paid a fine to secure her release from

22 detention. As to the documentation she did produce, the

4 1 agency reasonably declined to credit statements from Chen’s

2 husband and his aunt on account of their inconsistent

3 testimony, and did not err in declining to credit

4 statements from Chen’s parents and friend in China. See

5

(b)(1)(B)(iii); see also Y.C. v. Holder, 741

(2d Cir. 2013) (deferring to agency’s

7 decision to afford little weight to relative’s letter from

8 China because it was unsworn and from an interested

9 witness); Siewe v. Gonzales,

(2d Cir.

10 2007) (“An IJ may, either expressly or impliedly, rely on

11 falsus in uno to discredit evidence that does not benefit

12 from corroboration or authentication independent of the

13 petitioner’s own credibility.”). Further, Chen admitted

14 that the photographs of her Falun Gong practice were taken

15 solely for the purpose of her application rather than

16 spontaneously during her activities as a Falun Gong

17 practitioner.

18 Given Chen’s evasive demeanor, inconsistent evidence,

19 and lack of reliable corroboration, the agency’s adverse

20 credibility determination is supported by substantial

21 evidence. See

(b)(1)(B)(iii). That

22 determination is dispositive of withholding of removal and

5 1 CAT relief because both claims are based on the same

2 factual predicate. See Paul v. Gonzales,

,

3 156-57 (2d Cir. 2006).

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 15

6