17-920 Chen v. Whitaker BIA Zagzoug, IJ A205 027 384 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 16th day of January, two thousand nineteen. 5 6 PRESENT: 7 GERARD E. LYNCH, 8 DENNY CHIN, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MEIZHEN CHEN, 14 Petitioner, 15 16 v. 17-920 17 NAC 18 MATTHEW G. WHITAKER, 19 ACTING UNITED STATES ATTORNEY 20 GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Zhong Yue Zhang, Esq., Zhang & 25 Associates, LLC, Flushing, NY. 26 27 FOR RESPONDENT: Jonathan K. Ross, Trial Attorney, 28 Office of Immigration Litigation; 29 Margaret Kuehne Taylor, Senior 30 Litigation Counsel, Office of 31 Immigration Litigation; Chad A. 1 Readler, Principal Deputy 2 Assistant Attorney General; United 3 States Department of Justice, 4 Washington, DC. 5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Meizhen Chen, a native and citizen of the
11 People’s Republic of China, seeks review of a March 23, 2017
12 decision of the BIA affirming a December 14, 2015 decision of
13 an Immigration Judge (“IJ”) denying Chen’s application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). Her application was
16 based on her membership in and activities related to the China
17 Democracy Party (“CDP”) while in the United States. In re
18 Meizhen Chen, No. A 205 027 384 (B.I.A. Mar. 23, 2017), aff’g
19 No. A 205 027 384 (Immig. Ct. N.Y. City Dec. 14, 2015). We
20 assume the parties’ familiarity with the underlying facts and
21 procedural history in this case.
22 We have reviewed the decisions of both the BIA and the
23 IJ “for the sake of completeness.” Wangchuck v. Dep’t of 2 1 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
2 standards of review are well established. See 8 U.S.C.
3 § 1252(b)(4); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d
4 Cir. 2008); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
5 2009).
6 “Considering the totality of the circumstances, . . . a
7 trier of fact may base a credibility determination on the
8 demeanor, candor, or responsiveness of the applicant . . . ,
9 the consistency between the applicant’s or witness’s written
10 and oral statements . . . , the internal consistency of each
11 such statement, the consistency of such statements with other
12 evidence of record . . . , and any inaccuracies or falsehoods
13 in such statements, . . . or any other relevant factor.” 8
14 U.S.C. § 1158(b)(1)(B)(iii); see also Hong Fei Gao v.
15 Sessions, 891 F.3d 67, 76-77 (2d Cir. 2018); Xiu Xia Lin, 534
16 F.3d at 163-64. “We defer . . . to an IJ’s credibility
17 determination unless . . . it is plain that no reasonable
18 fact-finder could make such an adverse credibility ruling.”
19 Xiu Xia Lin, 534 F.3d at 167. Here, we conclude that
20 substantial evidence supports the agency’s determination that
21 Chen was not credible. 3 1 The record supports the agency’s characterization of
2 Chen’s testimony as often vague and lacking in sufficient
3 detail to be credible. An “IJ’s ability to observe the
4 witness’s demeanor places her in the best position to evaluate
5 whether apparent problems in the witness’s testimony suggest
6 a lack of credibility or, rather, can be attributed to an
7 innocent cause such as difficulty understanding the
8 question.” Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104,
9 113 (2d Cir. 2005).
10 First, the record shows that, as the IJ observed, Chen
11 repeated generic phrases like “the concept of the CDP” and
12 “the autocracy” without elaborating on their meaning,
13 suggesting that her testimony was memorized. Second, the
14 record supports the IJ’s determination that Chen’s undetailed
15 testimony regarding how she came to join the CDP was not
16 credible. Although Chen testified that she joined the
17 organization based on a leaflet she was handed in Flushing,
18 Queens, she was initially unable to describe the contents of
19 the leaflet or state the general mission of the organization.
20 She offered an account only late in the hearing, when she
21 gave what the IJ characterized as a memorized answer. And, 4 1 while she averred that she was traveling to a cousin’s
2 business when she was handed the leaflet, she could provide
3 neither the name of the cousin nor the business, and she did
4 not know the business’s address. A.R. 81-82. The IJ was
5 not required to accept Chen’s explanation for not knowing her
6 cousin’s name (that she always calls her cousin “Sister” and
7 “because there’s a huge age gap” between them). See Majidi
8 v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner
9 must do more than offer a plausible explanation for his
10 inconsistent statements to secure relief; he must demonstrate
11 that a reasonable fact-finder would be compelled to credit
12 his testimony.” (internal quotation marks and emphasis
13 omitted)). The IJ reasonably concluded in light of these
14 failings and with the support of its observations that Chen’s
15 testimony seemed “mechanical and memorized.” A.R. 70; see
16 Xusheng Shi v. BIA, 374 F.3d 64, 66 (2d Cir. 2004) (upholding
17 IJ’s finding that generalized or non-responsive answers
18 reflected memorized script).
19 The agency also reasonably found that Chen failed to
20 rehabilitate her credibility with reliable corroborating
21 evidence. The only additional evidence offered to support 5 1 Chen’s claims of her prodemocracy activities in the United
2 States were letters from her mother and the testimony of a
3 witness. The IJ did not err in according the letters
4 diminished weight, because Chen’s mother was an interested
5 witness not subject to cross-examination, and her letters
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17-920 Chen v. Whitaker BIA Zagzoug, IJ A205 027 384 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 16th day of January, two thousand nineteen. 5 6 PRESENT: 7 GERARD E. LYNCH, 8 DENNY CHIN, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MEIZHEN CHEN, 14 Petitioner, 15 16 v. 17-920 17 NAC 18 MATTHEW G. WHITAKER, 19 ACTING UNITED STATES ATTORNEY 20 GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Zhong Yue Zhang, Esq., Zhang & 25 Associates, LLC, Flushing, NY. 26 27 FOR RESPONDENT: Jonathan K. Ross, Trial Attorney, 28 Office of Immigration Litigation; 29 Margaret Kuehne Taylor, Senior 30 Litigation Counsel, Office of 31 Immigration Litigation; Chad A. 1 Readler, Principal Deputy 2 Assistant Attorney General; United 3 States Department of Justice, 4 Washington, DC. 5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Meizhen Chen, a native and citizen of the
11 People’s Republic of China, seeks review of a March 23, 2017
12 decision of the BIA affirming a December 14, 2015 decision of
13 an Immigration Judge (“IJ”) denying Chen’s application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). Her application was
16 based on her membership in and activities related to the China
17 Democracy Party (“CDP”) while in the United States. In re
18 Meizhen Chen, No. A 205 027 384 (B.I.A. Mar. 23, 2017), aff’g
19 No. A 205 027 384 (Immig. Ct. N.Y. City Dec. 14, 2015). We
20 assume the parties’ familiarity with the underlying facts and
21 procedural history in this case.
22 We have reviewed the decisions of both the BIA and the
23 IJ “for the sake of completeness.” Wangchuck v. Dep’t of 2 1 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
2 standards of review are well established. See 8 U.S.C.
3 § 1252(b)(4); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d
4 Cir. 2008); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
5 2009).
6 “Considering the totality of the circumstances, . . . a
7 trier of fact may base a credibility determination on the
8 demeanor, candor, or responsiveness of the applicant . . . ,
9 the consistency between the applicant’s or witness’s written
10 and oral statements . . . , the internal consistency of each
11 such statement, the consistency of such statements with other
12 evidence of record . . . , and any inaccuracies or falsehoods
13 in such statements, . . . or any other relevant factor.” 8
14 U.S.C. § 1158(b)(1)(B)(iii); see also Hong Fei Gao v.
15 Sessions, 891 F.3d 67, 76-77 (2d Cir. 2018); Xiu Xia Lin, 534
16 F.3d at 163-64. “We defer . . . to an IJ’s credibility
17 determination unless . . . it is plain that no reasonable
18 fact-finder could make such an adverse credibility ruling.”
19 Xiu Xia Lin, 534 F.3d at 167. Here, we conclude that
20 substantial evidence supports the agency’s determination that
21 Chen was not credible. 3 1 The record supports the agency’s characterization of
2 Chen’s testimony as often vague and lacking in sufficient
3 detail to be credible. An “IJ’s ability to observe the
4 witness’s demeanor places her in the best position to evaluate
5 whether apparent problems in the witness’s testimony suggest
6 a lack of credibility or, rather, can be attributed to an
7 innocent cause such as difficulty understanding the
8 question.” Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104,
9 113 (2d Cir. 2005).
10 First, the record shows that, as the IJ observed, Chen
11 repeated generic phrases like “the concept of the CDP” and
12 “the autocracy” without elaborating on their meaning,
13 suggesting that her testimony was memorized. Second, the
14 record supports the IJ’s determination that Chen’s undetailed
15 testimony regarding how she came to join the CDP was not
16 credible. Although Chen testified that she joined the
17 organization based on a leaflet she was handed in Flushing,
18 Queens, she was initially unable to describe the contents of
19 the leaflet or state the general mission of the organization.
20 She offered an account only late in the hearing, when she
21 gave what the IJ characterized as a memorized answer. And, 4 1 while she averred that she was traveling to a cousin’s
2 business when she was handed the leaflet, she could provide
3 neither the name of the cousin nor the business, and she did
4 not know the business’s address. A.R. 81-82. The IJ was
5 not required to accept Chen’s explanation for not knowing her
6 cousin’s name (that she always calls her cousin “Sister” and
7 “because there’s a huge age gap” between them). See Majidi
8 v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner
9 must do more than offer a plausible explanation for his
10 inconsistent statements to secure relief; he must demonstrate
11 that a reasonable fact-finder would be compelled to credit
12 his testimony.” (internal quotation marks and emphasis
13 omitted)). The IJ reasonably concluded in light of these
14 failings and with the support of its observations that Chen’s
15 testimony seemed “mechanical and memorized.” A.R. 70; see
16 Xusheng Shi v. BIA, 374 F.3d 64, 66 (2d Cir. 2004) (upholding
17 IJ’s finding that generalized or non-responsive answers
18 reflected memorized script).
19 The agency also reasonably found that Chen failed to
20 rehabilitate her credibility with reliable corroborating
21 evidence. The only additional evidence offered to support 5 1 Chen’s claims of her prodemocracy activities in the United
2 States were letters from her mother and the testimony of a
3 witness. The IJ did not err in according the letters
4 diminished weight, because Chen’s mother was an interested
5 witness not subject to cross-examination, and her letters
6 recounting police visits to her home were not subject to
7 verification apart from Chen’s own testimony. Y.C. v.
8 Holder, 741 F.3d 324, 334 (2d Cir. 2013) (affirming agency’s
9 determination that letter from relative in China was entitled
10 to limited weight because it was unsworn and submitted by an
11 interested witness); see Xiao Ji Chen v. U.S. Dept. of
12 Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that weight
13 to be accorded evidence is “largely within the discretion of
14 the IJ” (internal quotation marks omitted)). The IJ did not
15 err, further, in determining that the witness’s testimony was
16 of only limited value because the witness could not recall
17 specific information about Chen’s alleged involvement with
18 the CDP.
19 These problems with Chen’s testimony and the evidence
20 offered as corroboration, call into question the extent of
21 and motivation for her alleged activism. Substantial 6 1 evidence therefore supports the IJ’s adverse credibility
2 determination as to Chen. See 8 U.S.C. § 1158(b)(1)(B)(iii);
3 Xiu Xia Lin, 534 F.3d at 165-66.
4 Moreover, as the agency found, even crediting Chen’s
5 description of her activism in the United States, her asylum
6 claim fails because she did not meet her burden of showing an
7 objectively reasonable fear of future persecution. See
8 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004)
9 (requiring the fear be subjectively credible and “objectively
10 reasonable”). Because Chen’s CDP activities occurred in the
11 United States, she had to show that Chinese authorities were
12 either already aware, or likely to become aware, of those
13 activities. Hongsheng Leng v. Mukasey, 528 F.3d 135, 138,
14 143 (2d Cir. 2008). Chen did not meet that burden.
15 As noted above, the agency was not required to credit
16 the letters from Chen’s mother. Y.C., 741 F.3d at 334. That
17 Chen posted articles on the CDP’s website and that her
18 photograph was on the site is not enough to demonstrate the
19 requisite awareness. Id. at 333-34, 336-37. While the State
20 Department reports included in the administrative record
21 reflected persecution of democracy activists who were active 7 1 in China, they contained no examples of the Chinese
2 government’s persecution of individuals who had been
3 activists only in the United States before returning to China.
4 Because Chen failed to demonstrate that objectively
5 reasonable fear of future persecution that is needed to be
6 eligible for asylum, she also failed to meet the higher
7 burdens of proof applicable to withholding of removal and CAT
8 relief. Id. at 335.
9 For the foregoing reasons, the petition for review is
10 DENIED.
11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, 13 Clerk of Court