Dong Feng Dong-Chen v. Mukasey

278 F. App'x 49
CourtCourt of Appeals for the Second Circuit
DecidedMay 20, 2008
DocketNo. 07-3113-ag
StatusPublished
Cited by1 cases

This text of 278 F. App'x 49 (Dong Feng Dong-Chen v. Mukasey) 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
Dong Feng Dong-Chen v. Mukasey, 278 F. App'x 49 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Petitioner Dong Feng Dong-Chen, a native and citizen of the People’s Republic of China, seeks review of an order of the BIA issued on June 26, 2007, dismissing his appeal from the decision of an immigration judge (“U”) on November 29, 2005, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

Where, as here, the BIA “agrees with an IJ’s ultimate credibility determination but emphasizes particular aspects of the IJ’s reasoning,” we review “both the BIA’s and the IJ’s opinions, including those portions of the IJ’s decision that the BIA did not explicitly discuss.” Dong Gao v. Bd. of Immigration Appeals, 482 F.3d 122, 126 (2d Cir.2007). We review the agency’s factual findings, including adverse credibility determinations, “under the substantial evidence standard, treating them as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Niang v. Mukasey, 511 F.3d 138, 145 (2d Cir.2007) (quoting 8 U.S.C. § 1252(b)(4)(B)). Because Dong-Chen filed his application for relief in June 2005, his application is governed by the REAL ID Act of 2005, Pub.L. No. 109-13, div. B, 119 Stat. 302. See Liang Chen v. U.S. Attorney Gen., 454 F.3d 103, 106 n. 2 (2d Cir.2006) (per curiam). Section 101(a)(3) of the Act, 119 Stat. at 303, added 8 U.S.C. § 1158(b)(l)(B)(iii), which permits an IJ to base a credibility determination on “all relevant factors,” including the applicant’s “demeanor, candor, [and] responsiveness”; “the inherent plausibility of [his] account”; and “the consistency between [his] written and oral statements (whenever made and whether or not under oath, and consider[51]*51ing the circumstances under which the statements were made) ... without regard to whether an inconsistency ... goes to the heart of [his] claim.” Liang Chen, 454 F.3d at 106 n. 2 (quoting 8 U.S.C. § 1158(b)(l)(B)(iii)).

Dong-Chen’s principal argument on appeal is that the IJ erred in basing the adverse credibility determination in part on an inconsistency between Dong-Chen’s testimony and asylum application, on the one hand, and the record of his interview by a border patrol agent on Form 1-213 when he entered the United States in 2004, on the other. Specifically, Dong-Chen testified and wrote in his application that he came to the United States to escape persecution for being a Falun Gong practitioner, whereas the Form 1-213 reported that he came to the United States to seek employment. He argues that the Form 1-213 should be considered unreliable under the four factors enunciated in Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir.2004), for analyzing whether the record of an airport interview is a sufficiently accurate record of an alien’s statements to be worthy of consideration in determining whether the alien is credible. See id. at 179.

We see no basis to reject the IJ’s reliance on this inconsistency as one factor in making the adverse credibility finding. In Felzcerek v. INS, 75 F.3d 112 (2d Cir.1996), we held that a “Form 1-213 contain[s] guarantees of reliability and trustworthiness that are substantially equivalent to those required of documents admissible under Rule 803(8) [of the Federal Rules of Evidence, which relates to public records and reports].” Id. at 116. Here, however, as the BIA specifically noted, Dong-Chen does not argue that his 1-213 is less reliable than I-213s are as a general matter. Indeed, he testified that the other information on the form accurately reflected his statements. Additionally, we note that the REAL ID Act expressly permits the BIA to consider inconsistencies between any statements, wherever made, and that the agency here in fact considered Ramsameachire in making its determination that the Form 1-213 was sufficiently reliable to be used as one factor in an adverse credibility determination. Accordingly, the BIA did not err by basing its adverse credibility determination partly on the Form 1-213.

Under the circumstances, however, this single factor cannot be more than modestly probative of Dong-Chen’s credibility and is therefore insufficient, on its own, to sustain the BIA’s adverse credibility finding. See Belortaja v. Gonzales, 484 F.3d 619, 626 (2d Cir.2007) (“[A]n adverse credibility determination ... [must be] supported by substantial evidence and based on specific, cogent reasons bearing a legitimate nexus to the determination.”). Nevertheless, the BIA also reasonably relied on other factors that, taken together and in conjunction with the inconsistency already noted, lead us to conclude that a reasonable factfinder would not be compelled to find Dong-Chen credible. First, the IJ found that Dong-Chen lacked credibility because his asylum application lacked much of the specificity and detail that his testimony contained. The IJ and BIA relied on at least four omissions in Dong-Chen’s asylum application: (1) the place and length of Dong-Chen’s detention; (2) how he escaped from detention; (3) the name of the friend who introduced him to Falun Gong; and (4) the number of people with him when he was apprehended. This aspect of the agency’s fact-finding was proper because the agency may find an asylum applicant to lack credibility when his asylum application entirely fails to mention incidents that his testimony establishes as significant to his claim of [52]*52asylum. See Iouri v. Ashcroft, 487 F.3d 76, 81-82 & n. 4 (2d Cir.2007); Jin Hui Gao v. U.S. Attorney Gen., 400 F.3d 963, 964 (2d Cir.2005) (per curiam). Importantly, this aspect of the agency’s factfinding was not an erroneous demand for greater testimonial specificity. See Qiu v. Ashcroft, 329 F.3d 140, 150-53 (2d Cir.2003), overruled on other grounds by Shi Liang Lin v. Gonzales, 494 F.3d 296 (2d Cir.2007) (en banc). Qiu, which limits the circumstances in which the BIA may properly deny asylum on the ground that an alien’s testimony is “too vague,” does not address cases, such as this one, in which the BIA finds that testimony lacks credibility because it differs from the account provided in the asylum application.

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278 F. App'x 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dong-feng-dong-chen-v-mukasey-ca2-2008.