19-4080 Chen v. Garland BIA Poczter, IJ A208 603 112 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.

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 7th day of July, two thousand twenty-two.

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, MICHAEL H. PARK, STEVEN J. MENASHI, Circuit Judges. _____________________________________

YONGXING CHEN, Petitioner,

v. 19-4080 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Richard Tarzia, Law Office of Richard Tarzia, Belle Mead, New Jersey.

FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Anthony C. Payne , Assistant Director; Jennifer A. Bowen, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.

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 Yongxing Chen, a native and citizen of the

People’s Republic of China, seeks review of a November 22,

2019 decision of the BIA dismissing his appeal of a March 22,

2018 decision of an Immigration Judge (“IJ”) denying asylum,

withholding of removal, and protection under the Convention

Against Torture (“CAT”). In re Yongxing Chen, No. A208 603

112 (B.I.A. Nov. 22, 2019), dismissing appeal, No. A208 603

112 (Immigr. Ct. N.Y.C. Mar. 22, 2018). We assume the

parties’ familiarity with the underlying facts and procedural

history.

As an initial matter, Chen’s challenge to the agency’s

jurisdiction on the ground that his notice to appear omitted

his hearing date and time is foreclosed because he received

a subsequent hearing notice specifying this information and 2 appeared at his hearings. See Banegas Gomez v. Barr,

(2d Cir. 2019) (“We conclude that an NTA that

omits information regarding the time and date of the initial

removal hearing is nevertheless adequate to vest jurisdiction

in the Immigration Court, at least so long as a notice of

hearing specifying this information is later sent . . . .”);

see also Chery v. Garland,

, 987 (2d Cir. 2021)

(per curiam) (reaffirming the jurisdictional holding of

Banegas Gomez).

Accordingly, we address the agency’s decisions and review

the IJ’s decision as modified and supplemented by the BIA.

See Wangchuck v. DHS,

(2d Cir. 2006); Yan

Chen v. Gonzales,

(2d Cir. 2005). When,

as is the case here, “the BIA agrees with an IJ’s adverse

credibility determination and adopts particular parts of the

IJ’s reasoning, we review the decisions of both the BIA and

the IJ.” Hong Fei Gao v. Sessions,

(2d Cir.

2018) (quoting Xiu Xia Lin v. Mukasey,

(2d

Cir. 2008) (per curiam)). “Our review of the IJ’s decision

includes the portions not explicitly discussed by the BIA,

but not those grounds explicitly rejected by the BIA.” Id.

3 (alterations, citations, and internal quotation marks

omitted).

“We review the agency’s factual findings, including

adverse credibility findings, under the substantial evidence

standard, which requires that they be supported by

reasonable, substantial and probative evidence in the record

when considered as a whole.” Id. (internal quotation marks

omitted). An alien challenging an adverse credibility

finding “bears a particularly heavy burden” under the

substantial evidence standard, “which — absent some legal

error — requires us to ‘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.’” Likai Gao v. Barr,

(2d Cir. 2020) (quoting Hong Fei Gao,

(ellipsis omitted)); see also

(b)(4)(B)

(“[T]he administrative findings of fact are conclusive unless

any reasonable adjudicator would be compelled to conclude to

the contrary.”). “When an IJ or BIA decision contains

errors, ‘we may nevertheless deem remand futile and deny the

petition for review if (1) substantial evidence in the record

4 relied on by the IJ, considered in the aggregate, supports

the IJ’s finding that petitioner lacked credibility, and (2)

disregarding those aspects of the IJ’s reasoning that are

tainted by error, we can state with confidence that the IJ

would adhere to his decision were the petition remanded.’”

Lianping Li v. Lynch,

(2d Cir. 2016) (per

curiam) (quoting Siewe v. Gonzales,

, 166–67 (2d

Cir. 2007)).

The REAL ID Act of 2005, Pub L. No. 109-13,

(2005), provides that an asylum applicant bears the burden

of satisfying the trier of fact that his testimony is

credible. See

(b)(1)(B)(i),(ii). “[A]n

agency assessing credibility may itself properly consider the

totality of the circumstances, including the candor and

responsiveness of the applicant, the inherent plausibility of

his account, his demeanor while testifying, and the

consistency of his account, both internally and as compared

with other evidence, ‘without regard to whether an

inconsistency, inaccuracy, or falsehood goes to the heart of

the applicant’s claim.’” Likai Gao, 968 F.3d at 144–45

(quoting

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

5 Under the REAL ID Act, “an IJ may rely on any

inconsistency or omission in making an adverse credibility

determination as long as the ‘totality of the circumstances’

establishes that an asylum applicant is not credible.” Xiu

Xia Lin,

(quoting

(b)(1)(B)(iii)). “[A]lthough IJs may rely on non-

material omissions and inconsistencies, not all omissions and

inconsistencies will deserve the same weight.” Hong Fei Gao,

. “In the immigration context, in assessing

the probative value of the omission of certain facts, an IJ

should consider whether those facts are ones that a credible

petitioner would reasonably have been expected to disclose

under the relevant circumstances.”

at 78–79.

Furthermore, “an omission by a third party may form a basis

for an adverse credibility determination,” but “where a third

party’s omission creates no inconsistency with an applicant’s

own statements[,] . . . an applicant’s failure to explain

third-party omissions is less probative of credibility than

an applicant’s failure to explain his or her own omissions.”

.

Here, the IJ concluded that Chen was not credible based

6 on the totality of the circumstances, including his demeanor

and responsiveness. 1 In making this adverse credibility

determination, the IJ relied on omissions — in Chen's written

materials, a letter from his father, and a letter from his

wife — of facts regarding visits by the police to Chen’s home

in China, the religious beliefs of his wife and brother, and

his brother’s past persecution on the basis of his religion,

as well as Chen’s characterization of his introduction to

Christianity. Moreover, the IJ found, and the BIA agreed,

that Chen’s corroborative evidence did not sufficiently

rehabilitate the discredited testimony or independently

fulfill his burden of proof, a conclusion that Chen does not

directly challenge on appeal. Under the deferential standard

of review for these determinations, we cannot conclude that

“no reasonable fact-finder could make such an adverse

credibility ruling,” Hong Fei Gao,

(internal

quotation marks omitted), and accordingly we deny Chen’s

petition.

First, the IJ found that although Chen testified for the

1 The IJ found Chen’s sister, who testified at his hearing, credible but determined that her testimony could not cure the deficiencies in Chen’s testimony. 7 first time on cross-examination that the Chinese police

visited his family’s home two times in 2017 to check if he

was there, he did not add this information to his application

or written statement in the course of making other updates to

those materials, which were filed in 2016. The IJ also

remarked that Chen did not mention in his written statement

that his wife, brother, and sister became Christians or that

his brother was persecuted in China on the basis of his

religion. As the BIA noted, Chen did indeed mention these

facts regarding his wife and siblings in his application,

albeit without further detail. We acknowledge that “asylum

applicants are not required to list every incident of

persecution on their I-589 statements.” Lianping Li,

(quoting Pavlova v. INS,

(2d Cir.

2006)). Nonetheless, we conclude that the IJ reasonably

relied on these omissions in making the adverse credibility

finding given that these facts constitute the type of

information “that a credible petitioner would reasonably have

been expected to disclose,” Hong Fei Gao,

,

especially while making other updates to his materials.

In addition, the IJ cited omissions in letters from

8 Chen’s wife and father: specifically, that neither his wife

nor his father updated their letters to include information

about the two police visits in 2017, that his wife’s letter

did not mention that she is a Christian, and that his father’s

letter did not mention Chen’s brother’s persecution on the

basis of his religion. While an applicant’s failure to

account for third-party omissions is “less probative of

credibility than an applicant’s failure to explain his or her

own omissions,”

, we conclude that the IJ properly

relied on these material omissions as part of her

consideration of the record as a whole and under the REAL ID

Act’s provision that “an IJ may rely on any inconsistency or

omission in making an adverse credibility determination,” Xiu

Xia Lin,

.

Finally, the IJ found an inconsistency between Chen’s

claim in his written statement that a co-worker introduced

him to Christianity in 2015 and his testimony that his brother

had mentioned Christianity to him in 2007 and asked him to go

to church. Assuming arguendo that we agree with Chen’s

contention that his testimony was not in fact inconsistent,

we conclude that “the agency’s ultimate ruling . . . is

9 supported by substantial evidence” and that “the same

decision would be made on remand” in light of the

aforementioned omissions cited by the IJ. Lianping Li,

. Accordingly, we discern no reason for remand

based on this alleged error.

Because we conclude that substantial evidence supported

the IJ’s adverse credibility determination, we need not

address the IJ’s alternative holding that Chen failed to meet

his burden to establish a well-founded fear of future

persecution. Furthermore, the IJ’s determination that Chen

was not credible is dispositive of Chen’s claims for asylum

and withholding of removal because they are based on the same

factual predicate. 2 See Hong Fei Gao,

(“Where

the same factual predicate underlies a petitioner’s claims

for asylum, withholding of removal, and protection under the

CAT, an adverse credibility determination forecloses all

three forms of relief.”).

2 Chen did not appeal the IJ’s denial of his request for CAT relief to the BIA and does not raise the issue in this appeal. 10 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

11