19-4123 Chen v. Garland BIA Nelson, IJ A208 192 420 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 11th day of January, two thousand twenty-two. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 JOSÉ A. CABRANES, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 QI LIANG CHEN, 14 Petitioner, 15 16 v. 19-4123 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Dehai Zhang, Esq., Flushing, NY. 24 25 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 26 Attorney General; John S. Hogan, 27 Assistant Director; Todd J. 28 Cochran, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Qi Liang Chen, a native and citizen of the
9 People’s Republic of China, seeks review of a November 14,
10 2019, decision of the BIA affirming a March 5, 2018, decision
11 of an Immigration Judge (“IJ”) denying asylum, withholding of
12 removal, and protection under the Convention Against Torture
13 (“CAT”). In re Qi Liang Chen, No. A 208 192 420 (B.I.A. Nov.
14 14, 2019), aff’g No. A 208 192 420 (Immig. Ct. N.Y. City Mar.
15 5, 2018). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 We have reviewed both the IJ’s and the BIA’s opinions
18 “for the sake of completeness.” Wangchuck v. Dep’t of
19 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
20 applicable standards of review are well established. See
21 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
22 67, 76 (2d Cir. 2018) (reviewing adverse credibility
23 determinations for substantial evidence); Paloka v. Holder,
24 762 F.3d 191, 195 (2d Cir. 2014) (reviewing factual findings 2 1 for substantial evidence and questions of law de novo). In
2 determining whether an asylum applicant has met his burden,
3 the agency “weigh[s] the credible testimony along with other
4 evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(ii). The
5 agency did not err in concluding that Chen failed to meet his
6 burden of proof.
7 The agency reasonably concluded that Chen was not
8 credible. “Considering the totality of the circumstances,
9 and all relevant factors, a trier of fact may base a
10 credibility determination on . . . the consistency between
11 the applicant’s . . . written and oral statements . . . and
12 any inaccuracies or falsehoods in such statements[.]”
13 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
14 credibility determination unless, from the totality of the
15 circumstances, it is plain that no reasonable fact-finder
16 could make such an adverse credibility ruling.” Xiu Xia Lin
17 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
18 Gao, 891 F.3d at 76. An IJ may, “either expressly or
19 impliedly,” discredit an applicant’s testimony and evidence
20 under the “maxim falsus in uno, falsus in omnibus [false in
21 one thing, false in everything].” Siewe v. Gonzales, 480
22 F.3d 160, 170–71 (2d Cir. 2007) (internal quotation marks
3 1 omitted, brackets in original). The IJ appropriately did so
2 here because Chen admitted that the detailed testimony of
3 past persecution that he gave under oath at his credible fear
4 interview was not true. The IJ was not required to credit
5 Chen’s recantation of these statements or his explanation
6 that a snakehead told him to lie and he later recanted because
7 he was no longer allowed to lie after being baptized. See
8 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
9 petitioner must do more than offer a plausible explanation
10 for his inconsistent statements to secure relief; he must
11 demonstrate that a reasonable fact-finder would be compelled
12 to credit his testimony.” (internal quotations omitted)).
13 Chen did not otherwise meet his burden of proof. He did
14 not allege past persecution before the IJ, so he had the
15 burden to establish a well-founded fear of future persecution
16 by showing he would be “singled out individually for
17 persecution” based on his practice of Christianity or that
18 there was a “pattern or practice” of persecution of Christians
19 in China. 8 C.F.R. § 1208.13(b)(2); Jian Liang v. Garland,
20 10 F.4th 106, 117 (2d Cir. 2021). The agency did not err in
21 concluding that Chen did not establish a well-founded fear of
22 persecution under either theory.
4 1 Chen did not establish that he would be singled out for
2 persecution because he did not document the alleged events in
3 China or show that Chinese authorities were aware of his
4 practice of Christianity in the United States. See Hongsheng
5 Leng v. Mukasey, 528 F.3d 135, 137 (2d Cir. 2008) (“in order
6 to establish eligibility for relief based exclusively on
7 activities undertaken after . . . arrival in the United
8 States, an alien must make some showing that authorities in
9 his country of nationality are (1) aware of his activities or
10 (2) likely to become aware of his activities”); see also Jian
11 Liang, 10 F.4th at 117.
12 Even assuming Chen would continue to practice
13 Christianity at an unregistered church in China, the agency
14 reasonably concluded that he did not establish a well-founded
15 fear of persecution based on a pattern or practice of
16 persecution of Christians because the record reflected varied
17 treatment of Christians throughout China and because his
18 grandmother continued to practice Christianity unharmed. See
19 Jian Liang, 10 F.4th at 117 (holding that petitioner failed
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19-4123 Chen v. Garland BIA Nelson, IJ A208 192 420 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 11th day of January, two thousand twenty-two. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 JOSÉ A. CABRANES, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 QI LIANG CHEN, 14 Petitioner, 15 16 v. 19-4123 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Dehai Zhang, Esq., Flushing, NY. 24 25 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 26 Attorney General; John S. Hogan, 27 Assistant Director; Todd J. 28 Cochran, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Qi Liang Chen, a native and citizen of the
9 People’s Republic of China, seeks review of a November 14,
10 2019, decision of the BIA affirming a March 5, 2018, decision
11 of an Immigration Judge (“IJ”) denying asylum, withholding of
12 removal, and protection under the Convention Against Torture
13 (“CAT”). In re Qi Liang Chen, No. A 208 192 420 (B.I.A. Nov.
14 14, 2019), aff’g No. A 208 192 420 (Immig. Ct. N.Y. City Mar.
15 5, 2018). We assume the parties’ familiarity with the
16 underlying facts and procedural history.
17 We have reviewed both the IJ’s and the BIA’s opinions
18 “for the sake of completeness.” Wangchuck v. Dep’t of
19 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
20 applicable standards of review are well established. See
21 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
22 67, 76 (2d Cir. 2018) (reviewing adverse credibility
23 determinations for substantial evidence); Paloka v. Holder,
24 762 F.3d 191, 195 (2d Cir. 2014) (reviewing factual findings 2 1 for substantial evidence and questions of law de novo). In
2 determining whether an asylum applicant has met his burden,
3 the agency “weigh[s] the credible testimony along with other
4 evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(ii). The
5 agency did not err in concluding that Chen failed to meet his
6 burden of proof.
7 The agency reasonably concluded that Chen was not
8 credible. “Considering the totality of the circumstances,
9 and all relevant factors, a trier of fact may base a
10 credibility determination on . . . the consistency between
11 the applicant’s . . . written and oral statements . . . and
12 any inaccuracies or falsehoods in such statements[.]”
13 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
14 credibility determination unless, from the totality of the
15 circumstances, it is plain that no reasonable fact-finder
16 could make such an adverse credibility ruling.” Xiu Xia Lin
17 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
18 Gao, 891 F.3d at 76. An IJ may, “either expressly or
19 impliedly,” discredit an applicant’s testimony and evidence
20 under the “maxim falsus in uno, falsus in omnibus [false in
21 one thing, false in everything].” Siewe v. Gonzales, 480
22 F.3d 160, 170–71 (2d Cir. 2007) (internal quotation marks
3 1 omitted, brackets in original). The IJ appropriately did so
2 here because Chen admitted that the detailed testimony of
3 past persecution that he gave under oath at his credible fear
4 interview was not true. The IJ was not required to credit
5 Chen’s recantation of these statements or his explanation
6 that a snakehead told him to lie and he later recanted because
7 he was no longer allowed to lie after being baptized. See
8 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
9 petitioner must do more than offer a plausible explanation
10 for his inconsistent statements to secure relief; he must
11 demonstrate that a reasonable fact-finder would be compelled
12 to credit his testimony.” (internal quotations omitted)).
13 Chen did not otherwise meet his burden of proof. He did
14 not allege past persecution before the IJ, so he had the
15 burden to establish a well-founded fear of future persecution
16 by showing he would be “singled out individually for
17 persecution” based on his practice of Christianity or that
18 there was a “pattern or practice” of persecution of Christians
19 in China. 8 C.F.R. § 1208.13(b)(2); Jian Liang v. Garland,
20 10 F.4th 106, 117 (2d Cir. 2021). The agency did not err in
21 concluding that Chen did not establish a well-founded fear of
22 persecution under either theory.
4 1 Chen did not establish that he would be singled out for
2 persecution because he did not document the alleged events in
3 China or show that Chinese authorities were aware of his
4 practice of Christianity in the United States. See Hongsheng
5 Leng v. Mukasey, 528 F.3d 135, 137 (2d Cir. 2008) (“in order
6 to establish eligibility for relief based exclusively on
7 activities undertaken after . . . arrival in the United
8 States, an alien must make some showing that authorities in
9 his country of nationality are (1) aware of his activities or
10 (2) likely to become aware of his activities”); see also Jian
11 Liang, 10 F.4th at 117.
12 Even assuming Chen would continue to practice
13 Christianity at an unregistered church in China, the agency
14 reasonably concluded that he did not establish a well-founded
15 fear of persecution based on a pattern or practice of
16 persecution of Christians because the record reflected varied
17 treatment of Christians throughout China and because his
18 grandmother continued to practice Christianity unharmed. See
19 Jian Liang, 10 F.4th at 117 (holding that petitioner failed
20 to meet burden where State Department reports established
21 that “treatment of Christians in China varies by locality”
22 and petitioner’s evidence did not show persecution occurring
5 1 in his home province); Melgar de Torres v. Reno, 191 F.3d
2 307, 313 (2d Cir. 1999) (finding asylum applicant’s fear of
3 persecution not well-founded in part because her mother and
4 daughters continued to live unharmed in applicant’s native
5 country).
6 Given Chen’s admission that he lied under oath to
7 fabricate a past persecution claim and the lack of evidence
8 to support a pattern-or-practice claim, the agency did not
9 err in concluding that he failed to meet his burden of proof.
10 See 8 U.S.C. § 1158(b)(1)(B)(ii). That determination is
11 dispositive of Chen’s asylum, withholding of removal, and CAT
12 protection claims because all three forms of relief were based
13 on the same factual predicate. See Paul v. Gonzales, 444
14 F.3d 148, 156–57 (2d Cir. 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED. All pending motions and applications are DENIED and
17 stays VACATED.
18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court