Chen v. U.S. Attorney General

131 F. App'x 323
CourtCourt of Appeals for the Second Circuit
DecidedMay 11, 2005
DocketNo. 03-4536-AG
StatusPublished

This text of 131 F. App'x 323 (Chen v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chen v. U.S. Attorney General, 131 F. App'x 323 (2d Cir. 2005).

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED that the petition for review of the order of the Board of Immigration Appeals (“BIA”) is DENIED.

Petitioner Chun Qi Chen (“petitioner”) petitions for review of a March 10, 2003 order of the BIA that affirmed a March 9, 2000 order of Immigration Judge (“IJ”) Alan Vomacka, denying petitioner’s application for, inter alia, asylum under 8 U.S.C. § 1158.1 We assume the parties’ familiarity with the facts and procedural history of the case.

Where, as here, the BIA issues a brief order affirming the IJ’s decision while also providing additional reasoning, we review the decisions of both the BIA and the IJ. See, e.g., Zhou Yun Zhang v. United States INS, 386 F.3d 66, 73-75 (2d Cir. 2004). We uphold an IJ’s factual findings when they are supported by “substantial evidence.” Id. at 73. Factual findings pertaining to credibility are entitled to “particular deference,” and our review of those findings is “exceedingly narrow.” Id. at 73, 74 (citation and internal quotation marks omitted).

Petitioner challenges the IJ’s adverse credibility finding on a number of grounds, arguing, inter alia, that (1) the IJ erred in finding that petitioner’s demeanor and facial expression undermined his credibility; (2) the IJ improperly assumed that petitioner was financially motivated to lie; (3) the IJ improperly found that petitioner had become a member of an illegal smuggling organization; (4) the IJ found inconsistencies where none existed; and (5) the IJ ignored the record by finding that certain aspects of petitioner’s claims were implausible. Though we do not adopt the IJ’s reasoning in its entirety, we conclude [325]*325that substantial evidence supports the adverse credibility finding.

With respect to the IJ’s reliance on petitioner’s demeanor, we note that one of the principal reasons for which we defer to immigration judges on credibility issues is that they are better positioned than this Court to assess a witness’s demeanor and self-presentation. See id. at 73-74. On the other hand, we agree with petitioner that where cultural differences are at play, immigration judges must exercise caution before finding that a particular gesture, tone or facial expression undermines credibility. Cf. Chouchkov v. INS, 220 F.3d 1077, 1083 n. 15 (9th Cir.2000) (“[W]hat sounds peculiar in one country may be the norm in another.”). Here, however, we are satisfied that the IJ exercised sufficient caution. The IJ did not jump to conclusions with respect to petitioner’s demeanor or smile; rather, he expressed his concerns directly to petitioner during the hearing and provided him with an opportunity to explain. Petitioner indicated that he was nervous but then immediately changed his story and said he was not nervous. In the end, the IJ concluded that while “some people may smile or look lighthearted when they’re in a somewhat nervous situation,” petitioner’s “puzzling” demeanor in the case at bar undermined his credibility “to a certain extent.” Under the “ ‘particularly] deferential]’ ” standard of review that we apply to credibility determinations, Zhou Yun Zhang, 386 F.3d at 73 (citation omitted), we conclude that substantial evidence supports the IJ’s conclusion.

Petitioner also criticizes the IJ’s supposed “unspoken but clearly implied” finding that petitioner had a financial motive to lie about his asylum claim due to the debt he owed his family for paying smugglers for his illegal entry. This argument mischaracterizes the record. The IJ merely noted that he would “consider [petitioner’s] credibility from scratch” and “not tak[e] it for granted that he’s telling the truth,” in part because petitioner is “financially motivated” to stay in the United States. Reading the IJ’s decision as a whole, it is clear that this passing observation did not play a significant role in the credibility finding.

Petitioner also challenges the IJ’s supposed finding that petitioner “had become an integral part” of a smuggling organization and “had hence lost his credibility for that reason alone.” The record simply does not support petitioner’s characterization of the IJ’s ruling. Nothing in the IJ’s decision indicates that the IJ found petitioner to be “an integral part” of a smuggling organization, or that the IJ discounted petitioner’s credibility for that reason.

With regard to the discrepancies and omissions in petitioner’s application, petitioner takes issue with the IJ’s finding of an inconsistency between the written asylum application and petitioner’s spoken testimony regarding the number of people arrested at the demonstration. Petitioner points out that the application claimed only that two “union leaders” were arrested, and that this claim is fully consistent with his later testimony that six “members of the group” were arrested. Thus, petitioner contends, the IJ erred in concluding that petitioner had described the event inconsistently. Even if petitioner is correct, however, that his two versions of the story are technically reconcilable, he has still failed to explain why he would omit such a fundamental fact from his initial application. Given that the alleged negative response of government officials to the demonstration was the only true instance of government mistreatment described in the asylum application, it is exceedingly difficult to understand why petitioner’s application would mention only two of the six [326]*326arrests that allegedly took place. Because this omission went “to the heart” of petitioner’s claim for asylum, Secaida-Rosales v. INS, 331 F.3d 297, 308-09 (2d Cir.2003), the IJ did not err in concluding that it undermined petitioner’s credibility. See Dong v. Ashcroft, 406 F.3d 110, 111-12 (2d Cir.2005) (per curiam) (holding that IJ properly based adverse credibility finding on omission in- asylum application where omitted fact went “ ‘to the heart of [the] asylum claim.’ ” (citation omitted)).

We similarly find no error in the IJ’s reliance on discrepancies in petitioner’s description of police tactics at the demonstration. In the written asylum application, petitioner claimed only that the police “chase[d] people away,” while at the hearing, petitioner testified that demonstrators were beaten and that the police struck petitioner with a police stick, though petitioner was not seriously injured. The failure to mention the alleged use of force in the original application was a substantial, material omission going to the heart of petitioner’s claim. The IJ thus did not err in finding that the subsequent embellishment undermined petitioner’s credibility.

Other omissions and inconsistencies further bolster the IJ’s adverse credibility finding. For example, petitioner claimed on the written application that he did not belong to any organizations or groups in China but later claimed to belong to the Communist Party Youth Organization.

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Bluebook (online)
131 F. App'x 323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chen-v-us-attorney-general-ca2-2005.