20-319 Chen v. Garland BIA Schoppert, IJ A205 877 758 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 25th day of March, two thousand twenty-two. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 MICHAEL H. PARK, 9 EUNICE C. LEE, 10 Circuit Judges. 11 _____________________________________ 12 13 MIN MIN CHEN, 14 Petitioner, 15 16 v. 20-319 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Theodore N. Cox, New York, NY. 24 25 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 26 Assistant Attorney General; M. 27 Jocelyn Lopez Wright, Senior 28 Litigation Counsel; Jacob A. 1 Bashyrov, Trial Attorney, Office 2 of Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC.

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DENIED.

9 Petitioner Min Min Chen, a native and citizen of the

10 People’s Republic of China, seeks review of a January 15,

11 2020 decision of the BIA affirming an April 20, 2018 decision

12 of an Immigration Judge (“IJ”), which denied asylum,

13 withholding of removal, and protection under the Convention

14 Against Torture (“CAT”). In re Min Min Chen, No. A 205 877

15 758 (B.I.A. Jan. 15, 2020), aff’g No. A 205 877 758 (Immigr.

16 Ct. Apr. 20, 2018). We assume the parties’ familiarity with

17 the underlying facts and procedural history in this case.

18 We have reviewed the IJ’s decision as supplemented by

19 the BIA. See Yan Chen v. Gonzales,

(2d

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

21 established. See

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

22 Sessions,

(2d Cir. 2018) (reviewing adverse

23 credibility determination for substantial evidence).

2 1 “Considering the totality of the circumstances, and all

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

3 determination on the demeanor, candor, or responsiveness of

4 the applicant,” and inconsistencies within and between an

5 applicant’s statements and other evidence, “without regard to

6 whether an inconsistency, inaccuracy, or falsehood goes to

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

8 factor.”

(b)(1)(B)(iii). “We defer . . . to

9 an IJ’s credibility determination unless, from the totality

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

11 finder could make such an adverse credibility ruling.” Xiu

12 Xia Lin v. Mukasey,

(2d Cir. 2008); accord

13 Hong Fei Gao,

. Substantial evidence supports

14 the agency’s determination that Chen was not credible as to

15 his claim that he was arrested and beaten for practicing

16 Christianity in an underground church.

17 The agency reasonably relied on inconsistencies among

18 Chen’s statements and evidence regarding the host of his

19 underground church, whether any members escaped arrest during

20 an alleged raid, and how often he attended church. See 8

(b)(1)(B)(iii). The agency was not required to

3 1 credit Chen’s explanation for these inconsistencies. See

2 Majidi v. Gonzales,

(2d Cir. 2005) (“A

3 petitioner must do more than offer a plausible explanation

4 for his inconsistent statements to secure relief; he must

5 demonstrate that a reasonable fact-finder would be

6 compelled to credit his testimony.” (internal quotation marks

7 omitted)); Siewe v. Gonzales,

(2d Cir. 2007)

8 (“Where there are two permissible views of the evidence . .

9 . a reviewing court must defer” to the agency’s choices “so

10 long as the deductions are not illogical or implausible.”

11 (internal quotation marks and citation omitted)). The

12 adverse credibility determination is bolstered by the IJ’s

13 assessment of Chen’s demeanor, to which we defer. See Li Hua

14 Lin v. U.S. Dep’t of Justice,

(2d Cir. 2006)

15 (giving “particular deference” to an IJ’s demeanor finding

16 because “the IJ’s ability to observe . . . demeanor places

17 her in the best position to evaluate whether apparent problems

18 in the . . . testimony suggest a lack of credibility or,

19 rather, can be attributed to an innocent cause such as

20 difficulty understanding the question” (internal quotation

21 marks omitted)).

4 1 Finally, the agency reasonably concluded that Chen’s

2 corroborating evidence did not otherwise satisfy his burden

3 of proof. See

(b)(1)(B)(ii) (providing that

4 agency weighs credible testimony and other evidence in

5 determining whether asylum applicant has met his burden of

6 proof). The agency did not err in declining to credit letters

7 from China because the letter purportedly from a fellow

8 underground church member was inconsistent with Chen’s

9 statements, and the authors of the letters were not available

10 for cross-examination or were both unavailable and interested

11 witnesses. See Y.C. v. Holder,

(2d Cir.

12 2013) (upholding BIA’s decision to afford little weight to

13 letter from applicant’s spouse in China); Matter of H–L–H &

14 Z–Y–Z–,

(B.I.A. 2010) (giving

15 diminished weight to letters from “relatives and friends”

16 because they were from interested witnesses not subject to

17 cross-examination), abrogated on other grounds by Hui Lin

18 Huang v. Holder,

(2d Cir. 2012). Chen’s

19 remaining documents did not resolve the inconsistencies in

20 his statements and evidence. See Y.C.,

(“We

21 generally defer to the agency’s evaluation of the weight to

5 1 be afforded an applicant’s documentary evidence.”).

2 In sum, the inconsistencies and demeanor finding

3 constitute substantial evidence for the adverse credibility

4 determination and, absent credible testimony or reliable

5 corroboration, the agency did not err in concluding that Chen

6 failed to meet his burden of proof. See 8 U.S.C.

7 § 1158(b)(1)(B)(ii), (iii); Xiu Xia Lin,

167. This determination is dispositive of asylum,

9 withholding of removal and CAT relief because all three forms

10 of relief were based on the same factual predicate. See Paul

11 v. Gonzales,

, 156–57 (2d Cir. 2006).

12 For the foregoing reasons, the petition for review is

13 DENIED. All pending motions and applications are DENIED and

14 stays VACATED.

15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, 17 Clerk of Court

6