Chen v. Sessions

16-1721 Chen v. Sessions BIA Poczter, IJ A201 128 213 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 eighteen. [5] 6 PRESENT: 7 DENNIS JACOBS, 8 PETER W. HALL, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _____________________________________ [12] 13 LE NAN CHEN, 14 Petitioner, [15] 16 v. 16-1721 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ [22] 23 FOR PETITIONER: Stuart Altman, New York, NY. [24] 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Keith I. 27 McManus, Assistant Director; Juria 28 L. Jones, Trial Attorney, Office 29 of Immigration Litigation, United 30 States Department of Justice, 31 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 Le Nan Chen, a native and citizen of the 6 People’s Republic of China, seeks review of a May 17, 2016, 7 decision of the BIA affirming a February 19, 2015, decision 8 of an Immigration Judge (“IJ”) denying Chen’s application 9 for asylum, withholding of removal, and relief under the 10 Convention Against Torture (“CAT”). In re Le Nan Chen, No. 11 A201 128 213 (B.I.A. May 17, 2016), aff’g No. A201 128 213 12 (Immig. Ct. N.Y. City Feb. 19, 2015). We assume the 13 parties’ familiarity with the underlying facts and 14 procedural history in this case. 15 Under the circumstances of this case, we have reviewed 16 both the IJ’s and BIA’s decisions “for the sake of 17 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 18 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 19 review are well established. 8 U.S.C. § 1252 (b)(4)(B); Xiu 20 Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). [2] 1 The agency may, “[c]onsidering the totality of the 2 circumstances,” base an adverse credibility determination 3 on an applicant’s “demeanor, candor, or responsiveness,” as 4 well as inconsistencies in an applicant’s statements, 5 between an applicant’s and witness’s testimony, or between 6 an applicant’s testimony and other record evidence, 7 regardless of whether any such discrepancies “go[] to the 8 heart of the applicant’s claim.” 8 U.S.C. 9 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64 . “We 10 defer . . . to an IJ’s credibility determination unless 11 . . . it is plain that no reasonable fact-finder could make 12 such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d 13 at 167 . 14 Two material inconsistencies regarding Chen’s practice 15 of Christianity in the United States provide substantial 16 evidence for the IJ’s adverse credibility determination. 17 Chen’s testimony that he had attended church every 18 Wednesday since December 2010 conflicted with a letter from 19 his church, which states that he had attended only 31 to 35 20 times between January 2011 and August 2013. The IJ 21 reasonably declined to credit Chen’s explanation that he [3] 1 sometimes forgot to sign in because it contradicted his 2 prior testimony that he signed in every time he attended 3 church. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 4 2005) (“A petitioner must do more than offer a plausible 5 explanation for his inconsistent statements to secure 6 relief; he must demonstrate that a reasonable fact-finder 7 would be compelled to credit his testimony.” (quotation 8 marks omitted)). 9 Additionally, while Chen testified that he met his church 10 witness in the summer of 2011, Chen’s witness testified that 11 he met Chen in the summer of 2013. Chen gave no explanation 12 for this two-year discrepancy. Particularly when considered 13 together, these inconsistencies about the length and 14 frequency of Chen’s church attendance in the United States 15 undermine his claim that he is a practicing Christian. In 16 turn, the lack of credibility about that fact calls into 17 question whether Chen was a practicing Christian in China and 18 whether he suffered persecution on account of that practice. 19 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] 20 single false document or a single instance of false testimony [4] 1 may (if attributable to petitioner) infect the balance of the 2 alien’s uncorroborated or unauthenticated evidence.”). 3 The adverse credibility determination is further 4 bolstered by the IJ’s demeanor finding, to which we defer. 5 Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d 6 Cir. 2005); see also Li Hua Lin v. U.S. Dep’t of Justice, [7] 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still more 8 confident in our review of observations about an 9 applicant’s demeanor where, as here, they are supported by 10 specific examples of inconsistent testimony.”). 11 These material inconsistencies relating to Chen’s 12 practice of Christianity, as well as the IJ’s demeanor 13 finding, provide substantial evidence for the adverse 14 credibility determination. 8 U.S.C. § 1158 (b)(1)(B)(iii). 15 Because Chen’s claims were all based on the same factual 16 predicate, the adverse credibility determination is 17 dispositive of asylum, withholding of removal, and CAT 18 relief. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 19 2006). [5] 1 For the foregoing reasons, the petition for review is 2 DENIED. 3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk