19-107 Chen v. Garland BIA Christensen, IJ A206 511 312 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 25th day of March, two thousand twenty-one. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 RICHARD J. SULLIVAN, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 QI XUAN CHEN, 14 Petitioner, 15 16 v. 19-107 17 NAC 18 MERRICK GARLAND, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, Esq. New York, 24 NY. 25
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 FOR RESPONDENT: Cindy S. Ferrier , Assistant 2 Director; Kimberly A. Burdge, 3 Trial Attorney, Office of 4 Immigration Litigation, United 5 States Department of Justice, 6 Washington, DC. 7 8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Qi Xuan Chen, a native and citizen of the
13 People’s Republic of China, seeks review of a December 20,
14 2018 decision of the BIA affirming a November 15, 2017
15 decision of an Immigration Judge (“IJ”). In re Qi Xuan Chen,
16 No. A 206 511 312 (B.I.A. Dec. 20, 2018), aff’g No. A 206 511
17 312 (Immig. Ct. Nov. 15, 2017). We assume the parties’
18 familiarity with the underlying facts and procedural history.
19 We review both the BIA’s and IJ’s decisions under the
20 substantial evidence standard. See Yun-Zui Guan v. Gonzales,
21 432 F.3d 391, 394 (2d Cir. 2005); also 8 U.S.C.
22 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
23 (2d Cir. 2018).
24 “Considering the totality of the circumstances, and all
25 relevant factors, a trier of fact may base a credibility
2 1 determination on . . . the inherent plausibility of the
2 applicant’s . . . account, the consistency between the
3 applicant’s or witness’s written and oral statements . . . ,
4 the internal consistency of each such statement, the
5 consistency of such statements with other evidence of record
6 . . . and any inaccuracies or falsehoods in such statements,
7 without regard to whether an inconsistency, inaccuracy, or
8 falsehood goes to the heart of the applicant’s claim, or any
9 other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
10 defer . . . to an IJ’s credibility determination unless, from
11 the totality of the circumstances, it is plain that no
12 reasonable fact-finder could make such an adverse credibility
13 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
14 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial
15 evidence supports the adverse credibility determination.
16 First, the agency reasonably relied on inconsistencies
17 between Chen’s asylum interview and his testimony regarding
18 where he attended church and was arrested, whether his parents
19 attended church with him, and what police station he was
20 detained at. See Hong Fei Gao, 891 F.3d at 79 (holding that
21 “discrepancies . . . must be weighed in light of their
3 1 significance to the total context of . . . [the] claim of
2 persecution” (quoting Zhong v. U.S. Dep’t of Justice, 480
3 F.3d 104, 127 (2d Cir. 2007)). And those inconsistencies
4 provide substantial evidence for the adverse credibility
5 determination. See Likai Gao v. Barr, 968 F.3d 137, 145 n.8
6 (2d Cir. 2020) (“[E}ven a single inconsistency might preclude
7 an alien from showing that an IJ was compelled to find him
8 credible. Multiple inconsistencies would so preclude even
9 more forcefully.”); Xian Tuan Ye v. Dep’t of Homeland Sec.,
10 446 F.3d 289, 295 (2d Cir. 2006) (holding that “material
11 inconsistency in an aspect of [the] story that served as an
12 example of the very persecution from which [petitioner]
13 sought asylum . . . afforded substantial evidence to support
14 the adverse credibility finding” (internal quotation marks
15 omitted)).
16 The agency reasonably rejected Chen’s argument that he
17 should not be faulted for his failure to mention the church
18 he attended and was arrested at during his interview. See
19 Hong Fei Gao, 891 F.3d at 78 (“[T]he probative value of a
20 witness’s prior silence on particular facts depends on
21 whether those facts are ones the witness would reasonably
4 1 have been expected to disclose.”). His other explanations do
2 not resolve his inconsistent statements or compel a finding
3 that his statements were consistent. See Majidi v. Gonzales,
4 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more
5 than offer a plausible explanation for his inconsistent
6 statements to secure relief; he must demonstrate that a
7 reasonable fact-finder would be compelled to credit his
8 testimony.” (internal quotation marks omitted)).
9 Second, the agency reasonably found Chen’s account of
10 his escape from police custody inherently implausible. See
11 Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (“The
12 speculation that inheres in inference is not ‘bald’ if the
13 inference is made available to the factfinder by record facts,
14 or even a single fact, viewed in the light of common sense
15 and ordinary experience.”). The agency reasonably questioned
16 the plausibility of Chen’s account that he escaped from a
17 guarded hospital room through an unlocked window, scaled a
18 fence, and escaped by bus after he ran into an acquaintance
19 who paid his bus fare. See Ming Xia Chen v. BIA, 435 F.3d
20 141, 146 (2d Cir. 2006) (upholding implausibility finding
21 where applicant testified she escaped detention “just because
5 1 her jailors were not paying attention”).
2 Lastly, the agency reasonably found that Chen failed to
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19-107 Chen v. Garland BIA Christensen, IJ A206 511 312 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 25th day of March, two thousand twenty-one. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 RICHARD J. SULLIVAN, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 QI XUAN CHEN, 14 Petitioner, 15 16 v. 19-107 17 NAC 18 MERRICK GARLAND, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 FOR PETITIONER: Gary J. Yerman, Esq. New York, 24 NY. 25
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Merrick B. Garland is automatically substituted as Respondent. 1 FOR RESPONDENT: Cindy S. Ferrier , Assistant 2 Director; Kimberly A. Burdge, 3 Trial Attorney, Office of 4 Immigration Litigation, United 5 States Department of Justice, 6 Washington, DC. 7 8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Qi Xuan Chen, a native and citizen of the
13 People’s Republic of China, seeks review of a December 20,
14 2018 decision of the BIA affirming a November 15, 2017
15 decision of an Immigration Judge (“IJ”). In re Qi Xuan Chen,
16 No. A 206 511 312 (B.I.A. Dec. 20, 2018), aff’g No. A 206 511
17 312 (Immig. Ct. Nov. 15, 2017). We assume the parties’
18 familiarity with the underlying facts and procedural history.
19 We review both the BIA’s and IJ’s decisions under the
20 substantial evidence standard. See Yun-Zui Guan v. Gonzales,
21 432 F.3d 391, 394 (2d Cir. 2005); also 8 U.S.C.
22 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
23 (2d Cir. 2018).
24 “Considering the totality of the circumstances, and all
25 relevant factors, a trier of fact may base a credibility
2 1 determination on . . . the inherent plausibility of the
2 applicant’s . . . account, the consistency between the
3 applicant’s or witness’s written and oral statements . . . ,
4 the internal consistency of each such statement, the
5 consistency of such statements with other evidence of record
6 . . . and any inaccuracies or falsehoods in such statements,
7 without regard to whether an inconsistency, inaccuracy, or
8 falsehood goes to the heart of the applicant’s claim, or any
9 other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
10 defer . . . to an IJ’s credibility determination unless, from
11 the totality of the circumstances, it is plain that no
12 reasonable fact-finder could make such an adverse credibility
13 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
14 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial
15 evidence supports the adverse credibility determination.
16 First, the agency reasonably relied on inconsistencies
17 between Chen’s asylum interview and his testimony regarding
18 where he attended church and was arrested, whether his parents
19 attended church with him, and what police station he was
20 detained at. See Hong Fei Gao, 891 F.3d at 79 (holding that
21 “discrepancies . . . must be weighed in light of their
3 1 significance to the total context of . . . [the] claim of
2 persecution” (quoting Zhong v. U.S. Dep’t of Justice, 480
3 F.3d 104, 127 (2d Cir. 2007)). And those inconsistencies
4 provide substantial evidence for the adverse credibility
5 determination. See Likai Gao v. Barr, 968 F.3d 137, 145 n.8
6 (2d Cir. 2020) (“[E}ven a single inconsistency might preclude
7 an alien from showing that an IJ was compelled to find him
8 credible. Multiple inconsistencies would so preclude even
9 more forcefully.”); Xian Tuan Ye v. Dep’t of Homeland Sec.,
10 446 F.3d 289, 295 (2d Cir. 2006) (holding that “material
11 inconsistency in an aspect of [the] story that served as an
12 example of the very persecution from which [petitioner]
13 sought asylum . . . afforded substantial evidence to support
14 the adverse credibility finding” (internal quotation marks
15 omitted)).
16 The agency reasonably rejected Chen’s argument that he
17 should not be faulted for his failure to mention the church
18 he attended and was arrested at during his interview. See
19 Hong Fei Gao, 891 F.3d at 78 (“[T]he probative value of a
20 witness’s prior silence on particular facts depends on
21 whether those facts are ones the witness would reasonably
4 1 have been expected to disclose.”). His other explanations do
2 not resolve his inconsistent statements or compel a finding
3 that his statements were consistent. See Majidi v. Gonzales,
4 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more
5 than offer a plausible explanation for his inconsistent
6 statements to secure relief; he must demonstrate that a
7 reasonable fact-finder would be compelled to credit his
8 testimony.” (internal quotation marks omitted)).
9 Second, the agency reasonably found Chen’s account of
10 his escape from police custody inherently implausible. See
11 Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (“The
12 speculation that inheres in inference is not ‘bald’ if the
13 inference is made available to the factfinder by record facts,
14 or even a single fact, viewed in the light of common sense
15 and ordinary experience.”). The agency reasonably questioned
16 the plausibility of Chen’s account that he escaped from a
17 guarded hospital room through an unlocked window, scaled a
18 fence, and escaped by bus after he ran into an acquaintance
19 who paid his bus fare. See Ming Xia Chen v. BIA, 435 F.3d
20 141, 146 (2d Cir. 2006) (upholding implausibility finding
21 where applicant testified she escaped detention “just because
5 1 her jailors were not paying attention”).
2 Lastly, the agency reasonably found that Chen failed to
3 sufficiently corroborate his claim of past persecution. See
4 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
5 applicant’s failure to corroborate his . . . testimony may
6 bear on credibility, because the absence of corroboration in
7 general makes an applicant unable to rehabilitate testimony
8 that has already been called into question.”). The IJ
9 reasonably afforded diminished evidentiary weight to the
10 letters from his family and a fellow church member in China.
11 See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013)
12 (holding that “[w]e generally defer to the agency’s
13 evaluation of the weight to be afforded an applicant’s
14 documentary evidence” and deferring to BIA decision to afford
15 little weight to letter from applicant’s spouse).
16 The adverse credibility determination is dispositive of
17 asylum, withholding of removal, and CAT relief because all
18 three forms of relief are based on the same discredited
19 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-
20 57 (2d Cir. 2006).
6 1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court