23-6092 Chen v. Garland BIA Factor, IJ A208 011 724

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 for the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 21st day of November, two thousand 4 twenty-four. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 ROBERT D. SACK, 9 JOSEPH F. BIANCO, 10 Circuit Judges. 11 _____________________________________ 12 13 LIANG CHEN, 14 Petitioner, 15 16 v. 23-6092 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Nataliya I. Gavlin, Esq., Gavlin & Associates, 24 P.C., New York, NY. 1 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant 2 Attorney General; Russell J. E. Verby, Senior 3 Litigation Counsel; John D. Williams, Senior 4 Trial Attorney, Office of Immigration 5 Litigation, United States Department of 6 Justice, Washington, DC.

7 UPON DUE CONSIDERATION of this petition for review of a Board of

8 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND

9 DECREED that the petition for review is DENIED.

10 Petitioner Liang Chen, a native and citizen of the People’s Republic of

11 China, seeks review of a December 30, 2022, decision of the BIA affirming a

12 September 3, 2019, decision of an Immigration Judge (“IJ”) denying his application

13 for asylum, withholding of removal, and relief under the Convention Against

14 Torture (“CAT”). In re Liang Chen, No. A 208 011 724 (B.I.A. Dec. 30, 2022), aff’g

15 No. A 208 011 724 (Immig. Ct. N.Y. City Sept. 3, 2019). We assume the parties’

16 familiarity with the underlying facts and procedural history.

17 We have reviewed the IJ’s decision as modified by the BIA, i.e., minus the

18 findings the BIA did not reach. See Xue Hong Yang v. U.S. Dep’t of Just.,

(2d Cir. 2005). We review an adverse credibility determination “under

20 the substantial evidence standard,” Hong Fei Gao v. Sessions,

(2d Cir.

21 2018), and “the administrative findings of fact are conclusive unless any 2 1 reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C.

2 § 1252(b)(4)(B).

3 “Considering the totality of the circumstances, and all relevant factors, a

4 trier of fact may base a credibility determination on . . . the consistency between

5 the applicant’s or witness’s written and oral statements (whenever made and

6 whether or not under oath, and considering the circumstances under which the

7 statements were made), the internal consistency of each such statement, the

8 consistency of such statements with other evidence of record . . . , and any

9 inaccuracies or falsehoods in such statements, without regard to whether an

10 inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim,

11 or any other relevant factor.” Id. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s

12 credibility determination unless, from the totality of the circumstances, it is plain

13 that no reasonable fact-finder could make such an adverse credibility ruling.”

14 Xiu Xia Lin v. Mukasey,

(2d Cir. 2008); accord Hong Fei Gao, 891

15 F.3d at 76.

16 Chen alleged that he was arrested and beaten for attending an underground

17 church in China. Substantial evidence supports the agency’s adverse credibility

18 determination.

3 1 First, the agency reasonably relied on inconsistencies between Chen’s

2 statements and a letter from his mother. See

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

3 testified that he called his mother the day of his arrest to tell her he had been

4 arrested. However, Chen’s mother wrote, “in the evening, a middle-aged woman

5 came to my house and told me that my son was taken by the police.” The IJ was

6 not compelled to accept Chen’s explanation that he did not know about this

7 woman because he testified that his mother told him about the woman when he

8 was released from detention. See Majidi v. Gonzales,

(2d Cir. 2005)

9 (“A petitioner must do more than offer a plausible explanation for his inconsistent

10 statements to secure relief; he must demonstrate that a reasonable fact-finder

11 would be compelled to credit his testimony.” (quotation marks omitted)).

12 The agency also reasonably relied on inconsistencies between Chen’s

13 written and oral statements regarding whether he gave the police his name when

14 he was arrested. See

(b)(1)(B)(iii). At the hearing, Chen affirmed

15 multiple times that when he was arrested and later detained, the police asked his

16 name, but he did not tell them. However, in the statement submitted with his

17 application he wrote that he gave his name during an interrogation. When

18 confronted with this inconsistency, Chen paused, and then stated that he was

4 1 mistaken, and that he did give the police his name. Although he changed his

2 testimony, he did not explain why he had testified to the contrary.

3 Chen argues that these minor inconsistencies are insufficient grounds for an

4 adverse credibility determination. To the contrary, the agency may consider even

5 minor inconsistencies in evaluating credibility, “so long as the ‘totality of the

6 circumstances’ establishes that [the] asylum applicant is not credible.” Xiu Xia

7 Lin,

(quoting

(b)(1)(B)(iii)). And the inconsistencies

8 here are not minor or immaterial, as they relate to and call into question the sole

9 incident of alleged persecution. “[E]ven a single inconsistency might preclude an

10 alien from showing that an IJ was compelled to find him credible. Multiple

11 inconsistencies would so preclude even more forcefully.” Likai Gao v. Barr, 968

, 145 n.8 (2d Cir. 2020).

13 Finally, the agency did not err in relying on a lack of corroboration of Chen’s

14 arrest and detention where, as here, credibility was already in question. See Biao

15 Yang v. Gonzales,

(2d Cir. 2007) (“An applicant’s failure to

16 corroborate his or her testimony may bear on credibility, because the absence of

17 corroboration in general makes an applicant unable to rehabilitate testimony that

18 has already been called into question.”); see also Chuilu Liu v. Holder,

,

5 1 198 n.5 (2d Cir. 2009) (distinguishing between situations where a failure to

2 corroborate provides support for an adverse credibility determination and where

3 a failure to corroborate is the basis for a conclusion that an applicant did not meet

4 his burden of proof). Chen testified that his uncle bailed him out of detention,

5 and “probably” got a receipt, but that his mother had the receipt and other

6 documentation of his detention. Given that the evidence was directly relevant to

7 Chen’s alleged persecution and his admission that the evidence existed, the IJ

8 reasonably relied on the absence of the evidence. See

(b)(4) (“No

9 court shall reverse a determination . . . with respect to the availability of

10 corroborating evidence, . . . unless the court finds, . . . that a reasonable trier of fact

11 is compelled to conclude that such corroborating evidence is unavailable.”). The

12 IJ was not required to give Chen additional time to obtain corroboration. See Wei

13 Sun v. Sessions,

(2d Cir. 2018) (holding that “the alien bears the

14 ultimate burden of introducing such evidence without prompting from the IJ”

15 (quoting Chuilu Liu,

)).

16 And Chen does not challenge the BIA’s conclusion that he waived review of

17 the IJ’s finding that he failed to corroborate his U.S. church attendance. See

18 Debique v. Garland,

(2d Cir. 2023) (“We consider abandoned any

6 1 claims not adequately presented in an appellant’s brief, and an appellant’s failure

2 to make legal or factual arguments constitutes abandonment.” (quotation marks

3 omitted)).

4 In sum, substantial evidence supports the adverse credibility determination

5 given the inconsistencies regarding Chen’s arrest and detention and the lack of

6 reliable corroboration. See

(b)(1)(B)(iii); Likai Gao, 968 F.3d at 145

7 n.8; Xiu Xia Lin,

; Biao Yang,

. The adverse credibility

8 determination is dispositive of asylum, withholding of removal, and CAT relief

9 because all three forms of relief were based on the same factual predicate.

10 See Hong Fei Gao,

.

11 For the foregoing reasons, the petition for review is DENIED. All pending

12 motions and applications are DENIED and stays VACATED.

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court 16

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