Opinion
19-2688 NAC
12-21-2021
WENMIN CHEN, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Dehai Zhang, Esq., Flushing, NY. FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Russell J. E. Verby, Senior Litigation Counsel; John D. Williams, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UNPUBLISHED OPINION
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of December, two thousand twenty-one.
FOR PETITIONER: Dehai Zhang, Esq., Flushing, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Russell J. E. Verby, Senior Litigation Counsel; John D. Williams, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, JON O. NEWMAN, WILLIAM J. NARDINI, Circuit Judges.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Wenmin Chen, a native and citizen of the People's Republic of China, seeks review of an August 9, 2019, decision of the BIA affirming a February 13, 2018, decision of an immigration judge ("IJ") denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). In re Wenmin Chen, No. A206 583 014 (B.I.A. Aug. 9, 2019); aff'g No. A206 583 014 (Immig. Ct. N.Y. City Feb. 13, 2018). We assume the parties' familiarity with the underlying facts and procedural history.
We have reviewed both the BIA's and IJ's decisions. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse credibility determination for substantial evidence).
We do not reach the issue of timeliness of Chen's asylum application. Our jurisdiction to review that determination is limited to constitutional claims and questions of law, and the IJ based her determination on Chen's credibility, which turns on factfinding, not questions of law. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Shi Jie Ge v. Holder, 588 F.3d 90, 94 (2d Cir. 2009).
We address the adverse credibility determination because it also was the basis for the denial of withholding of removal and CAT protection. "Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant . . ., the inherent plausibility of the applicant's . . . account, the consistency between the applicant's . . . written and oral statements . . ., the internal consistency of each such statement, [and] the consistency of such statements with other evidence of record . . . without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor." 8 U.S.C. § 1158(b)(1)(B)(iii). "We defer . . . to an IJ's credibility determination unless . . . it is plain that no reasonable fact-finder could make such an adverse credibility ruling." Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. The inconsistencies, demeanor finding, and lack of reliable corroboration provide substantial evidence for the adverse credibility determination.
The agency relied on inconsistencies between Chen's testimony and his cousin's letter as well as within his testimony as to when he gave the cousin's letter to his counsel, when he decided to get baptized, the nature and timing of his interactions with his siblings in the United States, and his conversations with his family about his conversion to Catholicism. These findings are grounded in the record and provide substantial evidence for the adverse credibility determination. See Xian Tuan Ye v. Dep't of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (holding that a "material inconsistency in an aspect of [the] story that served as an example of the very persecution from which [Petitioner] sought asylum . . . afforded substantial evidence to support the adverse credibility finding" (internal citation omitted)); see also Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) ("[E]ven a single inconsistency might preclude an alien from showing that an IJ was compelled to find him credible. Multiple inconsistencies would so preclude even more forcefully."). Chen's explanations that the inconsistencies in his testimony were the result of a "slip of the tongue," "memory lapses," and his limited education do not compel a contrary finding. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) ("A petitioner must do more than offer a plausible explanation for his inconsistent statements to secure relief; he must demonstrate that a reasonable fact-finder would be compelled to credit his testimony" (internal quotation marks omitted)).
Moreover, the IJ's demeanor finding provides additional support for the adverse credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii). The IJ identified specific testimony that appeared mechanical and memorized and noted Chen's inability to put events in sequential order. "We give particular deference to [findings] that are based on the adjudicator's observation of the applicant's demeanor, in recognition of the fact that the IJ's ability to observe the witness's demeanor places her in the best position to evaluate whether apparent problems in the witness's testimony suggest a lack of credibility or, rather, can be attributed to an innocent cause such as difficulty understanding the question." Li Hua Lin v. U.S. Dep't of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (internal brackets omitted).
The agency also reasonably relied on Chen's lack of reliable corroboration. "An applicant's failure to corroborate his . . . testimony may bear on credibility, because the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question." Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The IJ reasonably afforded diminished weight to Chen's cousin's letter given the lack of compelling explanation as to what prompted the cousin to write the letter after not speaking to Chen for several years, and the cousin was not available for cross-examination. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (holding that "[w]e generally defer to the agency's evaluation of the weight to be afforded an applicant's documentary evidence" and upholding BIA's decision to afford little weight to a letter from applicant's spouse in China); Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (finding letters from relatives and friends did not provide substantial support for claim where authors were "interested witnesses who were not subject to cross-examination"), overruled on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). The agency likewise did not err in finding Father Ruan's testimony insufficient to rehabilitate Chen's credibility given his inconsistent testimony as to whether Chen's brother attended his church, see 8 U.S.C. § 1158(b)(1)(B)(iii), or in relying on Chen's failure to offer the testimony of that brother or the friend who introduced him to Catholicism.
In light of the inconsistencies, demeanor finding, and lack of reliable corroboration, the agency's adverse credibility determination is supported by substantial evidence. See Xiu Xia Lin, 534 F.3d at 165-66. The adverse credibility determination is dispositive because all forms of relief were based on the same discredited factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.