17-2680 Chen v. Barr BIA Leeds, IJ A200 181 195 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 10th day of December, two thousand nineteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 JOSÉ A. CABRANES, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 XIAOFENG CHEN, 14 Petitioner, 15 16 v. 17-2680 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 ____________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General, Civil Division, 27 United States Department of 28 Justice, Washington, DC; Linda S. 29 Wernery, Assistant Director, 30 William C. Minick, Trial Attorney, 31 Office of Immigration Litigation, 32 United States Department of 33 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 Xiaofeng Chen, a native and citizen of the

6 People’s Republic of China, seeks review of an August 3,

7 2017 decision of the BIA affirming a February 13, 2017

8 decision of an Immigration Judge (“IJ”) denying Chen’s

9 application for asylum, withholding of removal, and relief

10 under the Convention Against Torture (“CAT”). In re

11 Xiaofeng Chen, No. A 200 181 195 (B.I.A. Aug. 3, 2017),

12 aff’g No. A 200 181 195 (Immig. Ct. N.Y. City Feb. 13,

13 2017). We assume the parties’ familiarity with the

14 underlying facts and procedural history in this case.

15 Under the circumstances of this case, we review the

16 IJ’s decision as supplemented by the BIA. Yan Chen v.

17 Gonzales,

(2d Cir. 2005). The applicable

18 standards of review are well established. See 8 U.S.C.

19 § 1252(b)(4)(B); Hong Fei Gao v. Sessions,

, 76

20 (2d Cir. 2018).

21 2 1 The governing REAL ID Act credibility standard provides

2 as follows:

3 Considering the totality of the circumstances, and 4 all relevant factors, a trier of fact may base a 5 credibility determination on the demeanor, candor, 6 or responsiveness of the applicant or witness, . . 7 . the consistency between the applicant’s or 8 witness’s written and oral statements . . . , the 9 internal consistency of each such statement, the 10 consistency of such statements with other evidence 11 of record . . . , and any inaccuracies or 12 falsehoods in such statements, . . . or any other 13 relevant factor. 14 15

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

16 credibility determination unless . . . it is plain that no

17 reasonable fact-finder could make such an adverse

18 credibility ruling.” Xiu Xia Lin v. Mukasey,

,

19 167 (2d Cir. 2008); accord Hong Fei Gao,

.

20 Substantial evidence supports the agency’s adverse

21 credibility determination.

22 First, Chen has waived any challenge to the IJ’s

23 findings that (1) his testimony and medical records were

24 inconsistent, and (2) his uncle’s letter undermined his

25 credibility because its condition cast doubt on its

26 legitimacy. See Yueqing Zhang v. Gonzales,

,

27 541 n.1, 545 n.7 (2d Cir. 2005). Even if not waived, 3 1 however, these findings provide substantial support for the

2 adverse credibility determination. Chen’s testimony and the

3 hospital record were inconsistent regarding the number of

4 medications he was prescribed. And the agency reasonably

5 determined that a corroborating letter, purportedly mailed

6 by Chen’s uncle in China to Chen’s attorney in the United

7 States in an attached envelope, undermined his credibility

8 because the original document had no creases or fold marks

9 and therefore could not have been sent in the attached

10 envelope. See

(b)(1)(B)(iii); Siewe v.

11 Gonzales,

(2d Cir. 2007) (upholding

12 IJ’s rejection of document as inauthentic when petitioner

13 claimed that he did not present original because it was

14 creased but photocopy did not show crease marks.

15 Second, the IJ’s demeanor finding bolsters the adverse

16 credibility determination. See

1158(b)(1)(B)(iii) (allowing IJ to consider “demeanor,

18 candor, or responsiveness of the applicant”). We generally

19 “give particular deference” to adverse credibility

20 determinations “that are based on the adjudicator’s

21 observation of the applicant’s demeanor.” Li Hua Lin v. 4 1 U.S. Dep’t of Justice,

(2d Cir. 2006).

2 Moreover, the record reflects that Chen gave non-responsive

3 answers to questions regarding his practice of Falun Gong in

4 the United States and had to be asked multiple times whether

5 he practiced Falun Gong alone or in a group. See Tu Lin v.

6 Gonzales,

(2d Cir. 2006) (“Evasiveness is

7 . . . one of the many outward signs a fact-finder may

8 consider in evaluating demeanor and in making an assessment

9 of credibility.”).

10 Third, the IJ also reasonably concluded that Chen

11 failed to rehabilitate his credibility with reliable

12 corroborating evidence. See Biao Yang v. Gonzales,

268, 273 (2d Cir. 2007) (“An applicant’s failure to

14 corroborate his or her testimony may bear on credibility,

15 because the absence of corroboration in general makes an

16 applicant unable to rehabilitate testimony that has already

17 been called into question.”). As previously discussed,

18 Chen’s medical records were inconsistent with his testimony

19 and the letter from his uncle was not reliable evidence.

20 Furthermore, the IJ reasonably faulted Chen for providing

21 limited evidence that he continues to practice Falun Gong in 5 1 the United States, particularly as Chen gave non-responsive

2 and conflicting answers when asked why he did not provide

3 updated photographs or offer a witness.

4 Finally, although the IJ misstated Chen’s testimony in

5 concluding that he was inconsistent regarding his travel to

6 the United States—the transcript reflects that Chen said he

7 spent a few days, not two days, in both Mexico and Guatemala

8 remand would be futile because we are confident that the

9 agency would reach the same result absent the error. See

10 Lianping Li v. Lynch,

(2d Cir. 2016).

11 Given the demeanor and corroboration findings, the

12 discrepancies between Chen’s testimony and medical records,

13 and the unreliable letter from his uncle, the totality of

14 the circumstances supports the adverse credibility

15 determination. See Xiu Xia Lin,

. Because

16 Chen’s claims were all based on the same factual predicate,

17 the adverse credibility determination is dispositive of

18 asylum, withholding of removal, and CAT relief. See Paul v.

19 Gonzales,

(2d Cir. 2006).

20

21 6 1 For the foregoing reasons, the petition for review is

2 DENIED. All pending motions are DENIED and stays are

3 VACATED.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court

7