19-1063 Chen v. Garland BIA Wilson, IJ A089 479 986 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 8th day of March, two thousand twenty-two. 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 RAYMOND J. LOHIER, JR., 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 GI ZHONG CHEN, 14 Petitioner, 15 16 v. 19-1063 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: John Son Yong, Law Office of John 24 Yong, New York, NY. 25 26 FOR RESPONDENT: Brian M. Boynton, Assistant 27 Attorney General; Matthew B. 28 George, Senior Litigation Counsel; 29 Craig W. Kuhn, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 1 Justice, Washington, DC.

2 UPON DUE CONSIDERATION of this petition for review of a

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

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

5 is DENIED.

6 Petitioner Gi Zhong Chen, a native and citizen of the

7 People’s Republic of China, seeks review of a March 27, 2019

8 decision of the BIA affirming a January 3, 2018 decision of

9 an Immigration Judge (“IJ”) denying Chen’s application for

10 asylum, withholding of removal, and relief under the

11 Convention Against Torture (“CAT”). In re Gi Zhong Chen, No.

12 A089 479 986 (B.I.A. Mar. 27, 2019), aff’g No. A089 479 986

13 (Immig. Ct. N.Y. City Jan. 3, 2018). We assume the parties’

14 familiarity with the underlying facts and procedural history.

15 Under the circumstances, we have reviewed both the IJ’s

16 and the BIA’s opinions “for the sake of completeness.”

17 Wangchuck v. Dep’t of Homeland Security,

, 528

18 (2d Cir. 2006). We review competency and adverse credibility

19 findings for substantial evidence. See 8 U.S.C.

20 § 1252(b)(4)(B); Hong Fei Gao v. Sessions,

, 76

21 (2d Cir. 2018); see also Diop v. Lynch,

(4th

22 Cir. 2015). We find no error in the agency’s findings that 2 1 Chen was competent to testify and not credible as to his claim

2 that family planning officials in China forced his wife to

3 terminate a pregnancy, caused her to suffer a miscarriage,

4 and beat him.

5 We start with our conclusion that the agency did not err

6 in finding Chen competent to proceed with his removal

7 proceedings. “[A]n alien is presumed to be competent to

8 participate in removal proceedings.” Matter of M-A-M-, 25

, 477 (B.I.A. 2011). “[A] lack of competency

10 in civil immigration proceedings does not mean that the

11 hearing cannot go forward; rather, procedural fairness is

12 required.”

. “[T]he test for determining whether

13 an alien is competent to participate in immigration

14 proceedings is whether he or she has a rational and factual

15 understanding of the nature and object of the proceedings,

16 can consult with the attorney or representative if there is

17 one, and has a reasonable opportunity to examine and present

18 evidence and cross-examine witnesses.”

Here, Chen

19 submitted a psychiatric evaluation stating that he was able

20 to testify despite his cognitive impairment; he testified in

21 a way that was responsive to the questions posed to him; and

3 1 the IJ accommodated him by posing simpler questions when

2 necessary. See

.

3 Second, Chen waived any challenge to the IJ’s specific

4 inconsistency and lack of corroboration findings that formed

5 the bases for the agency’s adverse credibility determination.

6 See Yueqing Zhang v. Gonzales,

, 541 n.1, 545 n.7

7 (2d Cir. 2005) (finding that petitioner abandons issues and

8 claims not raised in his brief). Those findings are

9 supported by the record, which shows that Chen presented

10 inconsistent evidence regarding whether his mother or wife

11 told him of his wife’s 2002 abortion, whether his wife lived

12 in hiding for two weeks or four months, and whether he was

13 beaten during his second encounter with family planning

14 officials. See

(b)(1)(B)(iii); see also Likai

15 Gao v. Barr,

, 145 n.8 (2d Cir. 2020) (“[E]ven a

16 single inconsistency might preclude an alien from showing

17 that an IJ was compelled to find him credible. Multiple

18 inconsistencies would so preclude even more forcefully.”);

19 Hong Fei Gao, 891 F.3d at 78–79 (providing that an omission

20 may be significant if the “facts are ones that a credible

21 petitioner would reasonably have been expected to disclose

4 1 under the relevant circumstances”). Chen also did not submit

2 corroborating evidence that might have rehabilitated his

3 credibility. See Biao Yang v. Gonzales,

, 273

4 (2d Cir. 2007) (“An applicant’s failure to corroborate his or

5 her testimony may bear on credibility, because the absence of

6 corroboration in general makes an applicant unable to

7 rehabilitate testimony that has already been called into

8 question.”).

9 Given the inconsistency and corroboration findings, the

10 agency’s adverse credibility determination is supported by

11 substantial evidence. See

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

12 That determination is dispositive of asylum, withholding of

13 removal, and CAT relief because the claims were based on the

14 same factual predicate. See Paul v. Gonzales,

,

15 156–57 (2d Cir. 2006).

16 For the foregoing reasons, the petition for review is

17 DENIED. All pending motions and applications are DENIED and

18 stays VACATED.

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

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