Chen v. Barr

Opinion

16-4184 Chen v. Barr BIA Morace, IJ A206 364 827

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.

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 20th day of May, two thousand nineteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, ROSEMARY S. POOLER, SUSAN L. CARNEY, Circuit Judges. _____________________________________

XUE FANG CHEN, AKA XUE-FANG CHEN, Petitioner,

v. 16-4184 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent.1 _____________________________________

FOR PETITIONER: Ting Geng, Geng & Associates, P.C., Flushing, NY.

1 William P. Barr is automatically substituted for former Attorney General Jefferson B. Sessions III pursuant to Federal Rule of Appellate Procedure 43(c)(2). The Clerk of Court is directed to amend the caption accordingly. FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Bernard A. Joseph, Senior Litigation Counsel; Kate D. Balaban, 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 Xue Fang Chen, a native and citizen of the

People’s Republic of China, seeks review of a November 30,

2016, decision of the BIA affirming a January 27, 2016,

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

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Xue Fang

Chen, No. A206 364 827 (B.I.A. Nov. 30, 2016), aff’g No. A206

364 827 (Immig. Ct. N.Y.C. Jan. 27, 2016). We assume the

parties’ familiarity with the underlying facts and procedural

history.

Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA. See Yan Chen

v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable

standards of review are well established. See 8 U.S.C.

2 § 1252(b)(4); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

Cir. 2009); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d

Cir. 2008); Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d

149, 156 (2d Cir. 2005).

I. Past Persecution

The IJ concluded that Chen’s claim of past persecution

was not credible, and the BIA affirmed. In addressing

credibility, the agency must “[c]onsider[] the totality of

the circumstances” and may base a credibility finding on an

applicant’s “demeanor, candor, or responsiveness,” the

plausibility of her account, and inconsistencies or omissions

in her or her witness’s statements. 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64, 166-

67. “We defer . . . to an IJ’s credibility determination

unless . . . it is plain that no reasonable fact-finder could

make such an adverse credibility ruling.” Xiu Xia Lin, 534

F.3d at 167. For the reasons that follow, we conclude that

substantial evidence supported the IJ’s decision to reject

Chen’s past persecution claim on credibility grounds.

First, the agency reasonably relied on the omission of

alleged forced abortions from both Chen’s border patrol and

credible fear interviews. See Ming Zhang v. Holder, 585 F.3d

3 715, 724-25 (2d Cir. 2009) (observing that where the record

of a credible fear interview bears the hallmarks of

reliability, credibility determinations can account for

inconsistencies arising from credible fear interviews);

Ramsameachire v. Ashcroft, 357 F.3d 169, 179-81 (2d Cir. 2004)

(same for airport interviews). Although Chen testified that

she suffered forced abortions in 1998 and 2003, she did not

mention any issues with the family planning policy during her

initial interview at the border and mentioned only that

Chinese officials had forced her to use intrauterine devices

(“IUDs”) during her credible fear interview a few weeks later.

Chen challenges the use of her credible fear interview

on two grounds: first by arguing that the interviewer solely

questioned her about her forced use of IUDs and second by

arguing that evidence related to her credible fear interview

was untimely submitted to the court. The IJ was not required

to accept Chen’s explanation that the interviewer’s questions

caused her to focus on the forced use of IUDs and omit the

forced abortions. Majidi v. Gonzales, 430 F.3d 77, 80 (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

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

omitted)). Chen was given an opportunity during her credible

fear interview to discuss harm beyond the IUDs, but she did

not do so. Nor can Chen’s challenge to the admission of the

border patrol interview succeed because the interview was

used at the hearing as impeachment evidence, which is not

subject to the filing deadline. Immig. Ct. Practice Manual

ch. 3.1(b)(ii)(A).

The credibility of the past persecution claim was

further undermined by inconsistencies among Chen’s

testimony, her husband’s testimony, and her husband’s

written statement concerning how her husband learned of her

second abortion. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

Lin, 534 F.3d at 163-64. Both Chen and her husband

testified that her husband came home to find her lying in

bed, but her husband’s written statement was that he picked

her up at the hospital. Chen’s husband twice changed his

testimony when confronted with this discrepancy. When

confronted with the written statement, he confirmed that he

picked Chen up at the hospital, but when confronted with

Chen’s testimony, he stated that he learned of Chen’s

second abortion when he found her at home. Chen’s post-

5 hearing memorandum blamed these inconsistencies on her

husband’s mental illnesses and her attorney’s errors in

preparing her husband’s written statement; however, the IJ

did not err in declining to consider the arguments and

related evidence because Chen did not support her argument

that her attorney erred with corroborated evidence and the

evidence was submitted after the filing deadline. See

Immig. Ct. Practice Manual ch. 3.1(b)(ii)(A) (“For

individual calendar hearings involving non-detained aliens,

filings must be submitted at least fifteen (15) days in

advance of the hearing.”); Pretzantzin v. Holder, 736 F.3d

641, 651 (2d Cir. 2013) (“[T]he arguments of counsel are

not evidence.”). The BIA also correctly declined to

consider Chen’s submissions for the first time on appeal.

See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,

296 (2d Cir. 2006) (“[T]he BIA may only review the IJ’s

factual findings to determine whether they are clearly

erroneous, and may not engage in fact-finding, other than

taking administrative notice of commonly known facts”); 8

C.F.R. § 1003.1(d)(3)(iv) (“The Board will not engage in

factfinding in the course of deciding appeals.”).

Last, the agency reasonably found Chen’s corroborating

6 evidence insufficient to rehabilitate her credibility. Biao

Yang v. Gonzales, 496 F.3d 268, 273 (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.”).

Chen argues that the IJ should have given more weight to

her medical records from the United States, but the

resolution of conflicts in the record evidence is “a task

largely within the discretion of the agency.” Jian Hui Shao

v. Mukasey, 546 F.3d 138, 171 (2d Cir. 2008). As the IJ

found, those records were unauthenticated, and the doctors

who prepared them were not available for cross-examination.

Given the foregoing omission, inconsistency, and

corroboration findings, which call into question whether

Chen suffered any forced abortions, the adverse credibility

determination is supported by substantial evidence in light

of the “totality of the circumstances.” 8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. The

credibility determination is therefore dispositive of

Chen’s past persecution claim. See Paul v. Gonzales, 444

F.3d 148, 156-57 (2d Cir. 2006).

7 II. Well-Founded Fear of Future Persecution

Absent past persecution, an applicant may establish

asylum eligibility by demonstrating a well-founded fear of

persecution, which is a “subjective fear that is

objectively reasonable.” Tambadou v. Gonzales, 446 F.3d

298, 302 (2d Cir. 2006); see 8 U.S.C. § 1101(a)(42);

8 C.F.R. § 1208.13(b)(2); see also Y.C. v. Holder, 741 F.3d

324, 332 (2d Cir. 2013) (“For an asylum claim, the

applicant must show a reasonable possibility of future

persecution.” (internal quotation marks omitted)). “In the

absence of solid support in the record,” a fear of

persecution is not well founded and “is speculative at

best.” Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d

Cir. 2005).

We conclude that the agency reasonably determined that

Chen failed to demonstrate a well-founded fear of future

persecution based on the birth of her second child in the

United States. See id. at 128-29. As the agency observed,

Chen failed to present evidence of enforcement of the

family planning policy in her home region of Fujian

Province, as required to show that her fear is objectively

reasonable; nor did she provide evidence establishing that

8 she would still face persecution despite China’s relaxation

of the one-child policy to allow all couples to have up to

two children. Jian Hui Shao, 546 F.3d at 149 (requiring

applicant to demonstrate that the family planning policy is

punished in her local area in a manner that gives rise to

an objectively reasonable fear of persecution given

variations in the enforcement of the policy between

localities); U.S. Dep’t of State, 2016 Country Report on

Human Rights Practices: China 54 (Bureau of Democracy,

Human Rights & Labor, U.S. Dep’t of State 2016),

https://www.state.gov/documents/organization/265540.pdf

(“On January 1, [2016,] the government raised the birth

limit imposed on its citizens from one to two children per

married couple, thereby ending the ‘one-child policy’ first

enacted in 1979.”). Accordingly, Chen failed to demonstrate

a well-founded fear of persecution, and the agency did not

err in denying asylum or in concluding that she necessarily

failed to meet the higher burdens for withholding of

removal and CAT relief because her claims for such relief

are predicated on the same set of facts as her asylum claim

is. Y.C., 741 F.3d at 335.

9 III. Motion to Remand

“A motion to remand that relies on newly available

evidence is held to the substantive requirements of a

motion to reopen” and is reviewed for abuse of discretion.

Li Yong Cao, 421 F.3d at 156-57. A movant seeking remand

for consideration of new evidence must therefore present

“material, previously unavailable evidence” and satisfy

“the ‘heavy burden’ of demonstrating a likelihood that the

new evidence presented would alter the result in the case.”

Id. at 156.

The BIA did not abuse its discretion in declining to

remand because Chen’s new evidence would not likely change

the result of her case. First, Chen’s counsel’s affidavit

did not compellingly resolve Chen’s husband’s inconsistent

statements because a reasonable fact-finder could question

how an entirely different account of Chen’s husband

discovering the second forced abortion could result from a

typographical error, as Chen’s attorney suggested. See

Majidi, 430 F.3d at 80. Second, Chen’s medical records appear

to be duplicates of those submitted to the IJ. See Li Yong

Cao, 421 F.3d at 156 (requiring the evidence to have

previously been unavailable). Third, Chen’s additional

10 background evidence did not suggest that she would be punished

in her home region of Fujian Province for the birth of her

second child in the United States. See Jian Hui Shao, 546

F.3d at 149. Last, Chen’s post-hearing evidence concerning

her husband’s mental health would not compel a reasonable

adjudicator to excuse his inconsistent testimony because he

had no prior history of mental illness and Chen previously

described her husband as stable. Majidi, 430 F.3d at 80.

For the foregoing reasons, Chen’s petition for review is

DENIED, and her pending motion for a stay of removal in this

petition is DISMISSED as moot.

FOR THE COURT: Catherine O’Hagan Wolfe Clerk of Court