19-2521 Chen v. Garland BIA Zagzoug, IJ A206 729 014 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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 11th day of January, two thousand twenty-two.

PRESENT: PIERRE N. LEVAL, GERARD E. LYNCH, SUSAN L. CARNEY, Circuit Judges. _____________________________________

BIN CHEN, Petitioner,

v. 19-2521 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Norman Kwai Wing Wong, Law Offices of Norman Kwai Wing Wong, New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Claire L. Workman, Senior Litigation Counsel; Juria L. Jones, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Bin Chen, a native and citizen of the People’s

Republic of China, seeks review of a 2019 decision of the BIA

affirming a 2018 decision of an Immigration Judge (“IJ”)

denying asylum, withholding of removal, and protection under

the Convention Against Torture (“CAT”). In re Bin Chen, No.

A 206 729 014 (B.I.A. July 31, 2019), aff’g No. A 206 729 014

(Immig. Ct. N.Y. City Feb. 1, 2018). We assume the parties’

familiarity with the underlying facts and procedural history.

We review the IJ’s decision as modified by the BIA. See

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

(2d

Cir. 2005). The applicable standards of review are well

established. See

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

Sessions,

(2d Cir. 2018) (reviewing adverse

credibility determination for substantial evidence).

2 “Considering the totality of the circumstances, and all

relevant factors, a trier of fact may base a credibility

determination on” inconsistencies within and between an

applicant’s statements and other evidence “without regard to

whether an inconsistency, inaccuracy, or falsehood goes to

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

factor.”

(b)(1)(B)(iii). “We defer . . . to

an IJ’s credibility determination unless, from the totality

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

finder could make such an adverse credibility ruling.” Xiu

Xia Lin v. Mukasey,

(2d Cir. 2008); accord

Hong Fei Gao,

. On review, we conclude that

substantial evidence supports the agency’s adverse

credibility determination.

Chen alleged that his parents were arrested in 2005 for

attending an underground church, and that they continued

attending church without incident until February 2013, when

they fled during a police raid on the church. He further

alleged that, a week later, the police harassed and beat Chen

because he would not reveal his parents’ whereabouts. In

making its adverse credibility finding, the agency reasonably

3 relied on an omission from Chen’s application,

inconsistencies between his application and testimony, and

inconsistencies within his testimony. See

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

To start, Chen testified that on September 8, 2013,

shortly after he had returned to live at his parents’ home,

the police came to the home, took his Bible, and smashed the

furniture. He further testified that, following the

September 8 incident, the police visited “[a]bout once a week”

between then and when he left China on April 19, 2014, looking

for information about his parents. Certified Administrative

Record (“CAR”) at 176. But his application omitted mention

of any such weekly visits; instead, the only police visit to

his parents’ home that he identified was the September 8

incident.

We find no error in the agency’s reliance on this

omission because, although omissions may be less probative

than inconsistencies, the extent of Chen’s interactions with

police was an extremely significant aspect of his claim. The

agency appropriately highlighted the discrepancy between the

statement in his application, where he identified one

4 specific visit to his parents’ home, and his testimony, in

which he said that they occurred weekly over a period of more

than seven months. See Hong Fei Gao, 891 F.3d at 78–79

(holding that “[i]n general omissions are less probative . .

. than inconsistencies,” and that in assessing probative

value, “an IJ should consider whether those facts are ones

that a credible petitioner would reasonably have been

expected to disclose under the circumstances” (internal

quotation marks omitted)). Chen did not offer any meaningful

explanation for his failure to mention the weekly visits in

his affidavit. This was more in the nature of a serious

inconsistency as to an important aspect of his claim than a

mere omission of a detail.

The agency also reasonably relied on three other

inconsistencies within or among Chen’s statements. See

(b)(1)(B)(iii). Chen testified that his parents

were leaders in their underground church, but when asked about

their role, he responded that they were “just Christians” and

“[t]here’s no such thing as co-leader.” CAR at 216. He also

described his work history inconsistently. When testifying,

he stated that beginning in 2012 he had held two different

5 jobs in shops, and that he had not been employed before then.

In contrast, in his application he asserted that he had

“various” jobs from 2010 to 2013. Also, Chen stated at one

point during his testimony that he had never thought about

coming to the United States before the incidents in 2013,

but, when questioned by government counsel, he confirmed that

he had in fact sought and been denied visas to the United

States in 2011 and 2012. The IJ was not required to credit

Chen’s explanation that he thought counsel for the government

was asking when he started thinking about coming to the United

States for religious reasons rather than more generally; the

question was an open-ended one. 1

The agency also reasonably relied on the absence of

reliable corroboration for Chen’s account of the facts

supporting his application. “An applicant’s failure to

corroborate his or her testimony may bear on credibility,

1In sustaining the agency’s credibility assessment, we do not rely on its adverse inference based on the omission from Chen’s direct testimony of details regarding a police visit to his employer. He mentioned the incident in his application and direct testimony, and the omission from those statements of details drawn out on cross examination is not probative here of credibility. See Hong Fei Gao, 891 F.3d at 77–79. The agency’s error in this regard does not require remand, however, given its other sound findings. See Lianping Li v. Lynch,

(2d Cir. 2016). 6 because the absence of corroboration in general makes an

applicant unable to rehabilitate testimony that has already

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

(2d Cir. 2007). The agency could have credited, but

was not required to credit, letters from Chen’s father and an

underground church member because his father was an

interested witness and neither author was available for cross

examination. See Y.C. v. Holder,

(2d

Cir. 2013) (holding that “[w]e generally defer to the agency’s

evaluation of the weight to be afforded an applicant’s

documentary evidence” and upholding the agency’s decision to

afford very little weight to letter from applicant’s spouse

in China); Matter of H–L–H & Z–Y–Z–,

(B.I.A. 2010) (giving diminished evidentiary weight to

letters from “relatives and friends,” because they were from

interested witnesses not subject to cross examination), rev’d

on other grounds by Hui Lin Huang v. Holder,

(2d

Cir. 2012).

In sum, given the omission, inconsistencies, and lack of

reliable corroboration, substantial evidence supports the

agency’s adverse credibility determination. See 8 U.S.C.

7 § 1158(b)(1)(B)(iii); Xiu Xia Lin,

. This

determination is dispositive of Chen’s claims for asylum,

withholding of removal, and CAT relief because his claims for

all three forms of relief rest on the same factual

predicate. See Paul v. Gonzales,

, 156–57 (2d

Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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

8