19-3334 Chen v. Garland BIA Schoppert, IJ A202 024 033 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 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 11th day of March, two thousand twenty-two. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 MICHAEL H. PARK, 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 LIN CHEN, 15 Petitioner, 16 17 v. 19-3334 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Jed S. Wasserman, Esq., New York, 25 NY. 26 27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 28 Attorney General; Jessica A. 1 Dawgert, Senior Litigation 2 Counselor; Christopher Buchanan, 3 Trial Attorney, Office of 4 Immigration Litigation, United 5 States Department of Justice, 6 Washington, DC.

7 UPON DUE CONSIDERATION of this petition for review of a

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

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

10 is DENIED.

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

12 Republic of China, seeks review of a September 13, 2019,

13 decision of the BIA affirming a February 23, 2018, decision

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

15 asylum, withholding of removal, and protection under the

16 Convention Against Torture (“CAT”). In re Lin Chen, No. A202

17 024 033 (B.I.A. Sept. 13, 2019), aff’g No. A202 024 033

18 (Immig. Ct. N.Y. City Feb. 23, 2018). We assume the parties’

19 familiarity with the underlying facts and procedural history.

20 For the following reasons, we deny Petitioner’s petition for

21 review.

22 * * *

23 We have considered the IJ’s decision as modified by the

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

1 520, 522 (2d Cir. 2005). The applicable standards of review

2 are well established. See

(b)(4). “[W]e review

3 the agency’s decision for substantial evidence and must defer

4 to the factfinder’s findings based on such relevant evidence

5 as a reasonable mind might accept as adequate to support a

6 conclusion.” Singh v. Garland,

(2d Cir.

7 2021) (internal quotation marks omitted). “The scope of

8 review under the substantial evidence standard is exceedingly

9 narrow, and we will uphold the BIA’s decision unless the

10 petitioner demonstrates that the record evidence was so

11 compelling that no reasonable factfinder could fail to find

12 him eligible for relief.”

(internal quotation marks

13 omitted).

14 An asylum applicant has the burden to demonstrate

15 eligibility for relief.

(b)(1)(B)(i). “The

16 testimony of the applicant may be sufficient to sustain the

17 applicant’s burden without corroboration, but only if the

18 applicant satisfies the trier of fact that the applicant’s

19 testimony is credible, is persuasive, and refers to specific

20 facts sufficient to demonstrate that the applicant is a

21 refugee.”

§ 1158(b)(1)(B)(ii). “Considering the

3 1 totality of the circumstances, and all relevant factors, a

2 trier of fact may base a credibility determination” on

3 inconsistencies within and between an applicant’s statements.

4 Id. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s

5 credibility determination unless, from the totality of the

6 circumstances, it is plain that no reasonable fact-finder

7 could make such an adverse credibility ruling.” Xiu Xia Lin

8 v. Mukasey,

(2d Cir. 2008); accord Hong Fei

9 Gao v. Sessions,

F.3d 67, 76 (2d Cir. 2018).

10 Substantial evidence supports the agency’s adverse

11 credibility finding. Chen’s detailed written statement did

12 not mention seeking medical treatment for the injuries she

13 sustained while detained for practicing Falun Gong despite

14 discussing beatings that caused her to lose consciousness on

15 and off during her 15-day detention. Chen’s explanation that

16 her injuries were minor conflicted with the description in

17 her application. Accordingly, the agency did not err in

18 concluding that her testimony alone was not sufficient to

19 meet her burden of proof. See

(b)(1)(B)(ii). 1

1 Chen also challenges the agency’s credibility finding by claiming that she characterized her injuries as minor because two weeks had elapsed between her beatings and her release from detention. See Pet. Br. 14 (describing this

4 1 Further, the agency did not err in concluding that Chen

2 otherwise failed to meet her burden because, despite

3 testifying to ongoing practice of Falun Gong in the United

4 States, she had no witness statements to corroborate that

5 practice.

Her argument that the agency ignored

6 photographs is belied by the record, and we defer to the

7 agency’s conclusion that the photographs were not sufficient

8 to corroborate ongoing practice. See Y.C. v. Holder, 741

(2d Cir. 2013). The agency was not

10 compelled to credit her explanation that she did not know the

11 people with whom she practiced in the United States, given

12 her testimony that she practiced with others weekly. See 8

(b)(4) (“No court shall reverse a determination

14 made by a trier of fact with respect to the availability of

15 corroborating evidence . . . unless the court finds . . . that

16 a reasonable trier of fact is compelled to conclude that such

17 corroborating evidence is unavailable.”).

explanation as “very plausible”). But Chen’s argument “misapprehends the degree of deference we must afford to the IJ’s credibility findings.” Majidi v. Gonzales,

(2d Cir. 2005). “A petitioner must do more than offer a ‘plausible’ explanation for [her] inconsistent statements to secure relief; [she] must demonstrate that a reasonable fact-finder would be compelled to credit [her] testimony.”

(internal quotation marks and citations omitted). Chen has not done so here. 5 1 Chen’s failure to meet her burden of proof is dispositive

2 of asylum, withholding of removal, and CAT relief because all

3 three claims were based on the same factual predicate. See

4 Paul v. Gonzales,

, 156–57 (2d Cir. 2006). We do

5 not address Chen’s new argument that she will be tortured for

6 leaving China without permission because that issue is

7 unexhausted. See Lin Zhong v. U.S. Dep’t of Justice, 480

, 119–22 (2d Cir. 2007).

9 * * *

10 For the foregoing reasons, the petition for review is

11 DENIED. All pending motions and applications are DENIED and

12 stays VACATED.

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court

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