13-4790 Chen v. Bondi BIA Videla, IJ A099 525 027

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 21st day of October, two thousand twenty-five.

PRESENT: JOSEPH F. BIANCO, BETH ROBINSON, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

JIAN BAO CHEN, Petitioner,

v. 13-4790 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: David X. Feng, Feng & Associates P.C., New York, NY.

FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General; Anthony W. Norwood, Senior Litigation Counsel; Kathryn L. DeAngelis, Trial Attorney; Office of Immigration Litigation, United States Department of Justice, Washington, DC.

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 Jian Bao Chen, a native and citizen of the People’s Republic of

China, seeks review of a November 25, 2013, decision of the BIA affirming a July

31, 2012, decision of an Immigration Judge (“IJ”) denying his application for

asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). In re Jian Bao Chen, No. A 099 525 027 (B.I.A. Nov. 25, 2013), aff’g No. A

099 525 027 (Immigr. Ct. N.Y. City July 31, 2012). We assume the parties’

familiarity with the underlying facts and procedural history.

“[W]e review the judgment of the IJ as modified by the BIA’s decision—that

is, minus the” findings not relied on by the BIA. 1 Xue Hong Yang v. U.S. Dep’t of

1 Thus, we do not address Chen’s challenge to the IJ’s inconsistency finding

F.3d 520, 522 (2d Cir. 2005). “We review de novo questions of law and

the application of law to fact. We review the agency’s factual findings, including

adverse credibility findings, under the substantial evidence standard.” Hong Fei

Gao v. Sessions,

(2d Cir. 2018) (citation modified). “[T]he

administrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.”

(b)(4)(B).

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

trier of fact may base a credibility determination on . . . the inherent plausibility of

the applicant’s or witness’s account, the consistency between the applicant’s or

witness’s written and oral statements (whenever made and whether or not under

oath, and considering the circumstances under which the statements were made),

the internal consistency of each such statement, the consistency of such statements

with other evidence of record . . . , and any inaccuracies or falsehoods in such

statements, without regard to whether an inconsistency, inaccuracy, or falsehood

goes to the heart of the applicant's claim, or any other relevant factor.”

§ 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility determination unless, from

the totality of the circumstances, it is plain that no reasonable fact-finder could

regarding his monetary political contributions because the BIA did not rely on it. 3 make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey,

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

.

Chen asserted a fear of persecution in China on account of his political

activities for the China Democracy Party (“CDP”) in the United States.

Substantial evidence supports the agency’s determination that Chen was not

credible based on inconsistencies and omissions in his testimony, the testimony of

a supporting witness, and the documentary evidence. See

(b)(1)(B)(iii); Xiu Xia Lin,

; see also Likai Gao v. Barr,

, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency might preclude an alien

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

inconsistencies would so preclude even more forcefully.”).

As the agency noted, Chen’s testimony and documentary evidence reflected

inconsistent addresses for where he lived in New York, and a Nevada divorce

decree reflected that he was living in Nevada in 2010, i.e., at the same time as his

alleged political activities in New York. Chen does not dispute these evidentiary

inconsistencies, but asserts, by way of explanation, that one Queens address was

his residence, while the other was where he received his mail, and that the Nevada

court mixed up his address with that of his ex-wife. These explanations may be

4 plausible but they do not compel the agency to accept his testimony. See Majidi

v. Gonzales,

(2d Cir. 2005) (“A petitioner must do more than offer a

plausible explanation for his inconsistent statements to secure relief; he must

demonstrate that a reasonable fact-finder would be compelled to credit his

testimony.” (citation modified)); see also Siewe v. Gonzales,

(2d Cir.

2007) (holding that “support for a contrary inference – even one more plausible or

more natural – does not suggest error”). Moreover, the agency may rely on any

inconsistencies, and the inconsistencies in question here were material, because

Chen’s claim that he was politically active on the east coast would be called into

question if, as his divorce decree reflected, he had been living in Nevada in 2010.

See Xiu Xia Lin,

(“Even where an IJ relies on discrepancies or

lacunae that, if taken separately, concern matters collateral or ancillary to the

claim, the cumulative effect may nevertheless be deemed consequential by the

fact-finder.” (citation modified)).

Chen also omitted to mention some of his most significant alleged CDP

activities on direct examination. When asked repeatedly what CDP activities he

participated in, he mentioned events or protests he attended in New York and

Washington, D.C., but failed to mention a 2008 article he wrote and published on

5 the CDP’s website or a 2009 event he attended in Boston. Again, while it may be

plausible that he forgot to mention these events, that explanation is not compelling

because he was specifically asked “what other kind of activities” besides events or

protests he had engaged in. Certified Administrative Record (“CAR”) at 198.

As to the article, Chen submitted it to the agency as support for his claim, and it

was important enough that his CDP witness testified that as of Chen’s 2011

hearing the article was still on the CDP website, and the CDP witness was aware

of the month and year it was published. As to the Boston event, the CDP witness

testified that Chen was in charge of one of the buses that went to Boston, that 200

to 300 people were involved, and that Chen was responsible for maintaining order

during the event – yet Chen failed even to mention the Boston event, whereas he

was able to give specific dates and locations of other events. See Majidi, 430 F.3d

at 80–81; see also Siewe,

.

The agency may rely on “any inconsistency or omission,” Xiu Xia Lin,

, and while “in general omissions are less probative of credibility than

inconsistencies created by direct contradictions in evidence and testimony,” the

probative value “depends on whether [the omitted] facts are ones the witness

would reasonably have been expected to disclose,” Hong Fei Gao,

.

6 These omissions both related to Chen’s political activities, which were already in

question given the address inconsistencies, and the agency did not err in relying

on them.

Nor did the agency err in discounting some of Chen’s corroborating

evidence. As the agency noted, in addition to the inconsistency regarding the

Boston event, Chen’s witness’s testimony was implausible in part; in particular,

the witness testified “that he personally knew all 200 or 300 active members of the

CDP” and “that the CDP did not keep a membership list.” CAR at 5; see also Siewe,

(“The speculation that inheres in inference is not bald if the

inference is made available to the factfinder by record facts, or even a single fact,

viewed in the light of common sense and ordinary experience. So long as an

inferential leap is tethered to the evidentiary record, we will accord deference to

the finding.” (citation modified)). And the IJ did not abuse his discretion in

declining to give weight to photographs absent testimony regarding how they

were obtained or what they depicted. See CAR at 4; see also Y.C. v. Holder,

(2d Cir. 2013) (“We generally defer to the agency’s evaluation of the

weight to be afforded an applicant’s documentary evidence.”).

Given the inconsistencies, omissions, and lack of reliable corroboration of

7 Chen’s political activities, substantial evidence supports the adverse credibility

determination. See

(b)(1)(B)(iii); Xiu Xia Lin,

; Biao

Yang v. Gonzales,

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

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

corroboration in general makes an applicant unable to rehabilitate testimony that

has already been called into question.”). Because the adverse credibility

determination is dispositive of all forms of relief, see Hong Fei Gao,

,

we do not reach the agency’s alternative conclusion that, even if credible, Chen

did not establish an objectively reasonable fear of future persecution, see INS v.

Bagamasbad,

(1976) (“As a general rule courts and agencies are not

required to make findings on issues the decision of which is unnecessary to the

results they reach.”).

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

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