17-2824 Chen v. Barr BIA Vomacka, IJ A078 710 832 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 9th day of December, two thousand nineteen.
PRESENT: ROBERT A. KATZMANN, Chief Judge, ROBERT D. SACK, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
WEN MIN CHEN, Petitioner,
v. 17-2824 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,
Respondent. _____________________________________
FOR PETITIONER: Margaret Wong, Cleveland, OH.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Stephen J. Flynn, Assistant Director; Ann M. Welhaf, 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 Wen Min Chen, a native and citizen of the
People’s Republic of China, seeks review of an August 29,
2017, decision of the BIA affirming a November 3, 2016,
decision of an Immigration Judge (“IJ”) denying her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Wen Min
Chen, No. A078 710 832 (B.I.A. Aug. 29, 2017), aff’g No. A078
710 832 (Immig. Ct. N.Y. City Nov. 3, 2016). We assume the
parties’ familiarity with the underlying facts and procedural
history.
Under the circumstances, we have reviewed both the IJ’s
and the BIA’s opinions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528
(2d Cir. 2006). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018). Absent past
2 persecution, an asylum applicant must demonstrate a well-
founded fear of future persecution by showing either a
reasonable possibility that she would be singled out for
persecution or that the country of removal has a pattern or
practice of persecuting similarly situated individuals.
8 C.F.R. § 1208.13(b)(2); Hongsheng Leng v. Mukasey, 528 F.3d
135, 142 (2d Cir. 2008). Where an applicant’s claim is based
on activities commenced in the United States, the applicant
“must make some showing that authorities in h[er] country of
nationality are either aware of h[er] activities or likely to
become aware of h[er] activities.” Hongsheng Leng, 528 F.3d
at 143. We find no error in the agency’s findings that Chen
was not credible as to her claim that police in China had
discovered her religious practice and that she failed to
establish a pattern or practice of persecution of Christians.
Adverse Credibility Determination
In evaluating the testimony in support of an application
for asylum, “a trier of fact may base a credibility
determination on the demeanor, candor, or responsiveness of
the applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency between the
applicant’s or witness’s written and oral statements . . .
3 [and] the internal consistency of each such statement . . .
without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534
F.3d 162, 163-64 (2d Cir. 2008) (per curiam). Substantial
evidence supports the agency’s determination that Chen was
not credible as to her claim that police in China had
discovered her religious practice.
The agency reasonably relied on evidence that Chen had
previously filed a fraudulent application for a fiancée visa.
See 8 U.S.C. § 1158(b)(1)(B)(iii); Borovikova v. U.S. Dep’t
of Justice, 435 F.3d 151, 157–58 (2d Cir. 2006) (providing
that adverse credibility determination may rest entirely on
applicant’s submission of a fraudulent document). Chen
testified that her mother arranged for her to meet her fiancé
through a friend, she saw her fiancé in person only three
times (once for the introduction and twice at the U.S.
consulate where they applied for and were denied a visa), and
she could not remember his name, other than that she called
him Jeffrey. Chen further testified that she did not know
why their visa application was denied, claiming that the
consulate did not provide a reason and that her fiancé did
4 not say anything when she asked him why it was denied, and
that she never spoke to him again after the denial.
Accordingly, contrary to Chen’s contention, the IJ’s
determination that her visa application was fraudulent was
not speculative because her testimony revealed that she did
not know or spend time with her fiancé and she provided no
testimony from which the IJ could infer that the relationship
was bona fide. See Siewe v. Gonzales, 480 F.3d 160, 168–69
(2d Cir. 2007) (“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.”).
The agency also did not err in relying on Chen’s
inconsistent statements regarding why she came to the United
States. See 8 U.S.C. § 1158(b)(1)(B)(iii). Specifically,
the record supports the IJ’s determination that, although
Chen initially testified that she first considered leaving
China in July 2001 in light of China’s family planning policy,
she subsequently testified that she had in fact taken steps
to obtain a U.S. visa before July 2001. And the agency
5 reasonably concluded that letters from Chen’s brother and
cousin that they were detained, interrogated, and harmed in
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17-2824 Chen v. Barr BIA Vomacka, IJ A078 710 832 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 9th day of December, two thousand nineteen.
PRESENT: ROBERT A. KATZMANN, Chief Judge, ROBERT D. SACK, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
WEN MIN CHEN, Petitioner,
v. 17-2824 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,
Respondent. _____________________________________
FOR PETITIONER: Margaret Wong, Cleveland, OH.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Stephen J. Flynn, Assistant Director; Ann M. Welhaf, 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 Wen Min Chen, a native and citizen of the
People’s Republic of China, seeks review of an August 29,
2017, decision of the BIA affirming a November 3, 2016,
decision of an Immigration Judge (“IJ”) denying her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Wen Min
Chen, No. A078 710 832 (B.I.A. Aug. 29, 2017), aff’g No. A078
710 832 (Immig. Ct. N.Y. City Nov. 3, 2016). We assume the
parties’ familiarity with the underlying facts and procedural
history.
Under the circumstances, we have reviewed both the IJ’s
and the BIA’s opinions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528
(2d Cir. 2006). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018). Absent past
2 persecution, an asylum applicant must demonstrate a well-
founded fear of future persecution by showing either a
reasonable possibility that she would be singled out for
persecution or that the country of removal has a pattern or
practice of persecuting similarly situated individuals.
8 C.F.R. § 1208.13(b)(2); Hongsheng Leng v. Mukasey, 528 F.3d
135, 142 (2d Cir. 2008). Where an applicant’s claim is based
on activities commenced in the United States, the applicant
“must make some showing that authorities in h[er] country of
nationality are either aware of h[er] activities or likely to
become aware of h[er] activities.” Hongsheng Leng, 528 F.3d
at 143. We find no error in the agency’s findings that Chen
was not credible as to her claim that police in China had
discovered her religious practice and that she failed to
establish a pattern or practice of persecution of Christians.
Adverse Credibility Determination
In evaluating the testimony in support of an application
for asylum, “a trier of fact may base a credibility
determination on the demeanor, candor, or responsiveness of
the applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency between the
applicant’s or witness’s written and oral statements . . .
3 [and] the internal consistency of each such statement . . .
without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534
F.3d 162, 163-64 (2d Cir. 2008) (per curiam). Substantial
evidence supports the agency’s determination that Chen was
not credible as to her claim that police in China had
discovered her religious practice.
The agency reasonably relied on evidence that Chen had
previously filed a fraudulent application for a fiancée visa.
See 8 U.S.C. § 1158(b)(1)(B)(iii); Borovikova v. U.S. Dep’t
of Justice, 435 F.3d 151, 157–58 (2d Cir. 2006) (providing
that adverse credibility determination may rest entirely on
applicant’s submission of a fraudulent document). Chen
testified that her mother arranged for her to meet her fiancé
through a friend, she saw her fiancé in person only three
times (once for the introduction and twice at the U.S.
consulate where they applied for and were denied a visa), and
she could not remember his name, other than that she called
him Jeffrey. Chen further testified that she did not know
why their visa application was denied, claiming that the
consulate did not provide a reason and that her fiancé did
4 not say anything when she asked him why it was denied, and
that she never spoke to him again after the denial.
Accordingly, contrary to Chen’s contention, the IJ’s
determination that her visa application was fraudulent was
not speculative because her testimony revealed that she did
not know or spend time with her fiancé and she provided no
testimony from which the IJ could infer that the relationship
was bona fide. See Siewe v. Gonzales, 480 F.3d 160, 168–69
(2d Cir. 2007) (“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.”).
The agency also did not err in relying on Chen’s
inconsistent statements regarding why she came to the United
States. See 8 U.S.C. § 1158(b)(1)(B)(iii). Specifically,
the record supports the IJ’s determination that, although
Chen initially testified that she first considered leaving
China in July 2001 in light of China’s family planning policy,
she subsequently testified that she had in fact taken steps
to obtain a U.S. visa before July 2001. And the agency
5 reasonably concluded that letters from Chen’s brother and
cousin that they were detained, interrogated, and harmed in
Fujian Province on account of their religion were
inconsistent with the country conditions evidence, which does
not describe any arrests or abuse in that province even though
more than a quarter of the population practices Christianity.
Chen did not compellingly explain these inconsistencies. See
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 compelled
to credit his testimony.” (internal quotations omitted)).
Given the fraudulent visa application and
inconsistencies, the adverse credibility determination is
supported by substantial evidence. See Xiu Xia Lin, 534 F.3d
at 163-64. That determination is dispositive of asylum,
withholding of removal, and CAT relief insofar as those claims
were based on Chen’s claim that police were aware of and
likely to arrest and persecute her on account of her religion.
See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
Burden of Proof
The agency also did not err in finding that Chen failed
6 to establish a pattern or practice of persecution of similarly
situated Christians, since the country conditions evidence
reflects that tens of millions of Christians practice in
unregistered churches in China and that in some areas they do
so without interference. See Santoso v. Holder, 580 F.3d
110, 112 (2d Cir. 2009) (upholding denial of asylum where
evidence indicated that degree of religious tolerance or
persecution in country of citizenship varied by locality);
see also In re A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005)
(defining “pattern or practice of persecution” as persecution
that is “systemic or pervasive”). Accordingly, because the
agency reasonably found that Chen failed to demonstrate a
well-founded fear of persecution on account of her continued
religious practice, it did not err in denying asylum,
withholding of removal, and CAT relief.
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