17-549 Chen v. Whitaker BIA Hom, IJ A206 091 442 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 9th day of January, two thousand nineteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 PETER W. HALL, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 PING CHEN, 14 Petitioner, 15 16 v. 17-549 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Khaghendra Gharti-Chhetry, New 24 York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Principal Deputy 27 Assistant Attorney General; Keith 28 I. McManus, Assistant Director; 29 Rosanne M. Perry, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 32 Justice, Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Ping Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a January 25,
7 2017, decision of the BIA affirming a December 8, 2015,
8 decision of an Immigration Judge (“IJ”) denying Chen’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Ping
11 Chen, No. A206 091 442 (B.I.A. Jan. 25, 2017), aff’g No. A206
12 091 442 (Immig. Ct. N.Y. City Dec. 8, 2015). We assume the
13 parties’ familiarity with the underlying facts and procedural
14 history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Wangchuck v. Dep’t of Homeland Security, 448
18 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
19 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
20 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
21 “Considering the totality of the circumstances, and all
22 relevant factors, a trier of fact may base a credibility
23 determination on . . . the consistency between the applicant’s 2 1 and witness’s written and oral statements . . . , the internal
2 consistency of each such statement, [and] the consistency of
3 such statements with other evidence of record . . . .”
4 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
5 64. Substantial evidence supports the agency’s determination
6 that Chen was not credible as to her claim that police twice
7 tried to arrest her on account of her religious practice and
8 beat her during one of those incidents, and that she fears
9 future persecution on account of her continued religious
10 practice.
11 The agency reasonably relied on Chen’s inconsistent
12 testimony regarding when she began practicing Christianity
13 in China and how long she did so. See 8 U.S.C.
14 § 1158(b)(1)(B)(iii). Chen repeatedly testified that she
15 was denied a U.S. visa in December 2012, became depressed,
16 and began practicing Christianity in February 2013. She
17 then confirmed this time frame of events using different
18 terms, affirming that she began practicing Christianity two
19 months after her visa was denied, and that she continued
20 that practice for almost one year until she left China in
21 November 2013. However, when confronted with the
22 Government’s documentary evidence that her visa was denied
23 in December 2011 rather than December 2012, Chen became 3 1 evasive and unresponsive about how long after the visa
2 denial she began her religious practice, before changing
3 her testimony to match the Government’s evidence. She
4 could not explain her inconsistent testimony. See Majidi
5 v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner
6 must do more than offer a plausible explanation for his
7 inconsistent statements to secure relief; he must
8 demonstrate that a reasonable fact-finder would be
9 compelled to credit his testimony.” (internal quotation
10 marks omitted)).
11 The agency also reasonably relied on Chen’s inconsistent
12 testimony regarding whether her fear of persecution was
13 limited to her local area, or nationwide. See 8 U.S.C.
14 § 1158(b)(1)(B)(iii). In order to explain why Chinese
15 officials permitted her to leave China using her own passport
16 when police were looking for her, Chen testified that it was
17 only the local police who were interested in her. However,
18 when testifying about her fear of future persecution, she
19 claimed that she could not safely relocate within China
20 because police would arrest her regardless of her location.
21 Chen argues that it was speculative for the agency to find
22 this testimony inconsistent because the IJ assumed
23 incorrectly that she was a fugitive at the time she departed 4 1 China. She asserts that the police did not inform her family
2 that she should report to them until after she had left the
3 country. This argument fails because Chen testified that
4 police had looked for her at her parents’ house and wanted to
5 question her before she left China. See Siewe v. Gonzales,
6 480 F.3d 160, 168-69 (2d Cir. 2007) (“The speculation that
7 inheres in inference is not bald if the inference is made
8 available to the factfinder by record facts . . . .” (internal
9 quotation marks omitted)). Furthermore, Chen’s statement
10 that she could not safely relocate to another part of China
11 because police would arrest her, regardless of where in China
12 she was, implies that the national police were looking for
13 her at the time she left, not just the local police in Ankai.
14 This implication—that the national police were looking for
15 her before she left China—is contradicted by her assertion
16 that before she fled China, it was only the local police who
17 were looking for her, which is how she was able to leave China
18 with her own passport and was able to pass the scrutiny of
19 the national police at the airport. The IJ and BIA were
20 entitled to rely on this inconsistency in making an adverse
21 credibility determination.
22 Having questioned Chen’s credibility, the agency
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17-549 Chen v. Whitaker BIA Hom, IJ A206 091 442 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 9th day of January, two thousand nineteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 PETER W. HALL, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 PING CHEN, 14 Petitioner, 15 16 v. 17-549 17 NAC 18 MATTHEW G. WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Khaghendra Gharti-Chhetry, New 24 York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Principal Deputy 27 Assistant Attorney General; Keith 28 I. McManus, Assistant Director; 29 Rosanne M. Perry, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 32 Justice, Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Ping Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a January 25,
7 2017, decision of the BIA affirming a December 8, 2015,
8 decision of an Immigration Judge (“IJ”) denying Chen’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Ping
11 Chen, No. A206 091 442 (B.I.A. Jan. 25, 2017), aff’g No. A206
12 091 442 (Immig. Ct. N.Y. City Dec. 8, 2015). We assume the
13 parties’ familiarity with the underlying facts and procedural
14 history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Wangchuck v. Dep’t of Homeland Security, 448
18 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
19 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
20 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
21 “Considering the totality of the circumstances, and all
22 relevant factors, a trier of fact may base a credibility
23 determination on . . . the consistency between the applicant’s 2 1 and witness’s written and oral statements . . . , the internal
2 consistency of each such statement, [and] the consistency of
3 such statements with other evidence of record . . . .”
4 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
5 64. Substantial evidence supports the agency’s determination
6 that Chen was not credible as to her claim that police twice
7 tried to arrest her on account of her religious practice and
8 beat her during one of those incidents, and that she fears
9 future persecution on account of her continued religious
10 practice.
11 The agency reasonably relied on Chen’s inconsistent
12 testimony regarding when she began practicing Christianity
13 in China and how long she did so. See 8 U.S.C.
14 § 1158(b)(1)(B)(iii). Chen repeatedly testified that she
15 was denied a U.S. visa in December 2012, became depressed,
16 and began practicing Christianity in February 2013. She
17 then confirmed this time frame of events using different
18 terms, affirming that she began practicing Christianity two
19 months after her visa was denied, and that she continued
20 that practice for almost one year until she left China in
21 November 2013. However, when confronted with the
22 Government’s documentary evidence that her visa was denied
23 in December 2011 rather than December 2012, Chen became 3 1 evasive and unresponsive about how long after the visa
2 denial she began her religious practice, before changing
3 her testimony to match the Government’s evidence. She
4 could not explain her inconsistent testimony. See Majidi
5 v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner
6 must do more than offer a plausible explanation for his
7 inconsistent statements to secure relief; he must
8 demonstrate that a reasonable fact-finder would be
9 compelled to credit his testimony.” (internal quotation
10 marks omitted)).
11 The agency also reasonably relied on Chen’s inconsistent
12 testimony regarding whether her fear of persecution was
13 limited to her local area, or nationwide. See 8 U.S.C.
14 § 1158(b)(1)(B)(iii). In order to explain why Chinese
15 officials permitted her to leave China using her own passport
16 when police were looking for her, Chen testified that it was
17 only the local police who were interested in her. However,
18 when testifying about her fear of future persecution, she
19 claimed that she could not safely relocate within China
20 because police would arrest her regardless of her location.
21 Chen argues that it was speculative for the agency to find
22 this testimony inconsistent because the IJ assumed
23 incorrectly that she was a fugitive at the time she departed 4 1 China. She asserts that the police did not inform her family
2 that she should report to them until after she had left the
3 country. This argument fails because Chen testified that
4 police had looked for her at her parents’ house and wanted to
5 question her before she left China. See Siewe v. Gonzales,
6 480 F.3d 160, 168-69 (2d Cir. 2007) (“The speculation that
7 inheres in inference is not bald if the inference is made
8 available to the factfinder by record facts . . . .” (internal
9 quotation marks omitted)). Furthermore, Chen’s statement
10 that she could not safely relocate to another part of China
11 because police would arrest her, regardless of where in China
12 she was, implies that the national police were looking for
13 her at the time she left, not just the local police in Ankai.
14 This implication—that the national police were looking for
15 her before she left China—is contradicted by her assertion
16 that before she fled China, it was only the local police who
17 were looking for her, which is how she was able to leave China
18 with her own passport and was able to pass the scrutiny of
19 the national police at the airport. The IJ and BIA were
20 entitled to rely on this inconsistency in making an adverse
21 credibility determination.
22 Having questioned Chen’s credibility, the agency
23 reasonably relied further on her failure to rehabilitate 5 1 her testimony with reliable corroborating evidence. “An
2 applicant’s failure to corroborate . . . her testimony may
3 bear on credibility, because the absence of corroboration
4 in general makes an applicant unable to rehabilitate
5 testimony that has already been called into question.”
6 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
7 The agency did not err in declining to afford weight to
8 unsworn letters from Chen’s pastor and her mother in China
9 or an unsworn form letter from her church in the United
10 States. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.
11 2013) (deferring to agency’s decision to afford little
12 weight to relative’s letter because it was unsworn and from
13 an interested witness). Even if credited, neither of the
14 letters from China corroborates Chen’s claim that she was
15 beaten by police. Chen also did not proffer testimony or
16 sworn statements to confirm her continuing religious
17 practice from either the relative with whom she lives or
18 anyone from her church in the United States.
19 Given Chen’s inconsistent testimony and lack of
20 reliable corroboration, substantial evidence supports the
21 agency’s adverse credibility determination. See 8 U.S.C.
22 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
23 That determination is dispositive of asylum, withholding of 6 1 removal, and CAT relief because all three claims are based
2 on the same factual predicate. See Paul v. Gonzales, 444
3 F.3d 148, 156-57 (2d Cir. 2006). Accordingly, we do not
4 reach the agency’s alternative burden finding. See INS v.
5 Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule
6 courts and agencies are not required to make findings on
7 issues the decision of which is unnecessary to the results
8 they reach.”).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of removal
11 that the Court previously granted in this petition is VACATED,
12 and any pending motion for a stay of removal in this petition
13 is DISMISSED as moot. Any pending request for oral argument
14 in this petition is DENIED in accordance with Federal Rule of
15 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
16 34.1(b).
17 FOR THE COURT: 18 Catherine O’Hagan Wolfe 19 Clerk of Court 20