Chen v. Barr

     18-3412
     Chen v. Barr
                                                                         BIA
                                                                   Poczter, IJ
                                                               A 206 895 272
                         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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 21st day of October, two thousand twenty.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DENNY CHIN,
 9            JOSEPH F. BIANCO,
10                 Circuit Judges.
11   _____________________________________
12
13   ZHIQIANG CHEN, AKA ZHI CHEN,
14            Petitioner,
15
16                  v.                                  18-3412
17                                                      NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                John Chang, Esq., New York, NY.
24
25   FOR RESPONDENT:                Jeffrey Bossert Clark, Acting
26                                  Assistant Attorney General;
27                                  Brianne Whelen Cohen, Senior
28                                  Litigation Counsel; Ashley Martin,
 1                                   Trial Attorney, Office of
 2                                   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 Zhiqiang Chen, a native and citizen of the

10   People’s Republic of China, seeks review of a November 5,

11   2018 decision of the BIA affirming a November 17, 2017

12   decision   of    an   Immigration   Judge     (“IJ”)   denying   Chen’s

13   application for asylum, withholding of removal, and relief

14   under the Convention Against Torture (“CAT”).           In re Zhiqiang

15   Chen, No. A      206 895 272 (B.I.A. Nov. 5, 2018), aff’g No. A

16   206 895 272 (Immig. Ct. N.Y. City Nov. 17, 2017).           We assume

17   the   parties’    familiarity    with   the    underlying   facts   and

18   procedural history in this case.

19         Under the circumstances of this case, we have reviewed

20   the IJ’s decision as modified by the BIA, i.e., minus the

21   findings the BIA declined to rely on.           See Xue Hong Yang v.

22   U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

23   Because Chen has not challenged the agency’s alternative

                                         2
 1   denial of his future persecution claim based on his practice

 2   of   Christianity    in   the   United   States,   only    the   adverse

 3   credibility determination as stated by the BIA is before us.

 4   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir.

 5   2005) (finding CAT claim abandoned where it was not argued in

 6   petitioner’s brief).      The applicable standards of review are

 7   well established.     See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao

 8   v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse

 9   credibility    determination       for       substantial    evidence).

10   “Considering   the   totality     of   the   circumstances,      and   all

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

12   determination on . . . the consistency between the applicant’s

13   . . . written and oral statements . . . , the internal

14   consistency of each such statement, [and] the consistency of

15   such statements with other evidence of record . . . without

16   regard to whether an inconsistency, inaccuracy, or falsehood

17   goes to the heart of the applicant’s claim, or any other

18   relevant factor.”     8 U.S.C. § 1158(b)(1)(B)(iii).          “We defer

19   . . . to an IJ’s credibility determination unless, from the

20   totality of the circumstances, it is plain that no reasonable

21   fact-finder could make such an adverse credibility ruling.”


                                        3
 1   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);

 2   accord Hong Fei Gao, 891 F.3d at 76.              We conclude that the

 3   agency’s adverse credibility determination is supported by

 4   substantial evidence.

 5         Multiple inconsistencies provide substantial support for

 6   the   agency’s      adverse   credibility     determination.       Chen’s

 7   testimony was inconsistent with his mother’s statement about

 8   how many people came to their house to demolish their property

 9   in June 2014, who called the police after this incident, the

10   name of the friend who introduced Chen to Christianity in

11   August 2014, and when the police raided Chen’s church.                 Taken

12   together,     these       inconsistencies     constitute     substantial

13   evidence     for    the   agency’s   conclusion    that   Chen   was    not

14   credible.     See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

15   534 F.3d at 167 (permitting consideration of discrepancies

16   between the petitioner’s testimony and letters from third

17   parties).     The IJ was not compelled to accept Chen’s shifting

18   explanations       for    these   discrepancies.       See    Majidi      v.

19   Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must

20   do    more   than     offer   a   plausible     explanation      for    his

21   inconsistent statements to secure relief; he must demonstrate


                                          4
 1   that a reasonable fact-finder would be compelled to credit

 2   his testimony.” (internal quotation marks omitted)).

 3       The agency also properly relied on Chen’s omission from

 4   his asylum application of a second beating by the village

 5   officials    who   destroyed   his      property.    In   his   asylum

 6   application, Chen identified only one beating by the village

 7   officials who allegedly destroyed his property.           But he later

 8   testified that the same men beat him a second time two days

 9   later, prompting his mother to call the police again.              His

10   explanation that he thought mentioning only one beating was

11   “enough”    in   his   statement   is    not   persuasive,   Certified

12   Administrative Record (“CAR”) at 116, particularly given the

13   detailed written statement he attached to his application,

14   see Majidi, 430 F.3d at 80.        We find no error in the agency’s

15   reliance on this omission because it was a physical assault

16   that was central to both his past harm and the motivation for

17   his practice of Christianity.          See Ming Zhang v. Holder, 585

18   F.3d 715, 726 (2d Cir. 2009) (holding that the agency may

19   “draw an adverse inference about petitioner’s credibility

20   based, inter alia, on h[is] failure to mention” important

21   details or events in prior statements); see also Hong Fei


                                        5
 1   Gao, 891 F.3d at 78 (“[T]he probative value of a witness’s

 2   prior silence on particular facts depends on whether those

 3   facts are ones the witness would reasonably have been expected

 4   to disclose.”).

 5       Having    questioned     Chen’s     credibility,    the     agency

 6   reasonably   relied   on    his   failure    to   rehabilitate     his

 7   testimony with reliable corroborating evidence.               See Biao

 8   Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An

 9   applicant’s failure to corroborate his or her testimony may

10   bear on credibility, because the absence of corroboration in

11   general makes an applicant unable to rehabilitate testimony

12   that has already been called into question.”).           The agency

13   did not err in declining to afford significant weight to

14   letters from Chen’s friend and mother because his mother was

15   an interested witness and her letter was inconsistent with

16   Chen’s statements, and both authors were not available for

17   cross-examination.     See Y.C. v. Holder, 741 F.3d 324, 332,

18   334 (2d Cir. 2013) (holding that weight of evidence is within

19   agency   discretion   and   deferring   to   agency’s   decision    to

20   afford little weight to spouse’s letter because it was unsworn

21   and from an interested witness); see also In re H-L-H- & Z-


                                       6
 1   Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding that

 2   unsworn      letters    from    alien’s        friends         and    family       were

 3   insufficient     to     provide    substantial           support       for    alien’s

 4   claims    because      they    were     from    interested           witnesses     not

 5   subject to cross-examination), overruled on other grounds by

 6   Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).

 7         Chen    devotes    most     of    his     brief     to    arguing       that    a

 8   September     2014     arrest     warrant       from     the     Chinese       police

 9   corroborates that he was in fact arrested in September 2014

10   after the police raided his church and thus rehabilitates his

11   testimony.        However,        the        warrant,     which        the     agency

12   considered,      does     not     resolve          the     other       substantial

13   discrepancies     between       Chen’s       testimony     and        his    mother’s

14   letter – including, but not limited to, the date of Chen’s

15   arrest - and the agency has broad discretion in the weight it

16   affords to documents.          See Y.C., 741 F.3d at 332.

17         Accordingly, given the inconsistencies between Chen’s

18   and   his    mother’s    statements          and   the    omission          from   his

19   application,      the     adverse       credibility            determination         is

20   supported by substantial evidence.                 See Xiu Xia Lin, 534 F.3d

21   at 165–66; see also Xian Tuan Ye v. Dep’t of Homeland Sec.,


                                              7
 1   446 F.3d 289, 295 (2d Cir. 2006) (holding that even a single

 2   inconsistency is sufficient to support an adverse credibility

 3   determination if it is material and relates to “an example of

 4   the very persecution from which” the applicant seeks relief).

 5   The   adverse    credibility   determination   is   dispositive   of

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

 7   forms of relief were based on the same discredited factual

 8   predicate.      See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d

 9   Cir. 2006).

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




                                       8
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