Chen v. Garland

Court: Court of Appeals for the Second Circuit
Date filed: 2022-01-11
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Combined Opinion
     19-4123
     Chen v. Garland
                                                                             BIA
                                                                        Nelson, IJ
                                                                     A208 192 420
                            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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 11th day of January, two thousand twenty-two.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            JOSÉ A. CABRANES,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   QI LIANG CHEN,
14            Petitioner,
15
16                     v.                                  19-4123
17                                                         NAC
18   MERRICK B. GARLAND, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Dehai Zhang, Esq., Flushing, NY.
24
25   FOR RESPONDENT:                   Ethan P. Davis, Acting Assistant
26                                     Attorney General; John S. Hogan,
27                                     Assistant Director; Todd J.
28                                     Cochran, Trial Attorney, Office of
 1                                     Immigration Litigation, United
 2                                     States Department of Justice,
 3                                     Washington, DC.

 4         UPON DUE CONSIDERATION of this petition for review of a

 5   Board of Immigration Appeals (“BIA”) decision, it is hereby

 6   ORDERED, ADJUDGED, AND DECREED that the petition for review

 7   is DENIED.

 8         Petitioner Qi Liang Chen, a native and citizen of the

 9   People’s Republic of China, seeks review of a November 14,

10   2019, decision of the BIA affirming a March 5, 2018, decision

11   of an Immigration Judge (“IJ”) denying asylum, withholding of

12   removal, and protection under the Convention Against Torture

13   (“CAT”).    In re Qi Liang Chen, No. A 208 192 420 (B.I.A. Nov.

14   14, 2019), aff’g No. A 208 192 420 (Immig. Ct. N.Y. City Mar.

15   5, 2018).        We assume the parties’ familiarity with the

16   underlying facts and procedural history.

17         We have reviewed both the IJ’s and the BIA’s opinions

18   “for the sake of completeness.”                Wangchuck    v. Dep’t of

19   Homeland    Sec.,   448   F.3d    524,   528   (2d   Cir.   2006).   The

20   applicable standards of review are well established.                 See

21   8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d

22   67,   76   (2d    Cir.    2018)    (reviewing    adverse     credibility

23   determinations for substantial evidence); Paloka v. Holder,

24   762 F.3d 191, 195 (2d Cir. 2014) (reviewing factual findings
                                   2
 1   for substantial evidence and questions of law de novo).                  In

 2   determining whether an asylum applicant has met his burden,

 3   the agency “weigh[s] the credible testimony along with other

 4   evidence of record.”        8 U.S.C. § 1158(b)(1)(B)(ii).              The

 5   agency did not err in concluding that Chen failed to meet his

 6   burden of proof.

 7         The   agency   reasonably   concluded      that   Chen     was   not

 8   credible.     “Considering the totality of the circumstances,

9    and   all   relevant   factors,   a   trier    of   fact   may    base   a

10   credibility determination on . . . the consistency between

11   the applicant’s . . . written and oral statements . . . and

12   any   inaccuracies     or   falsehoods   in     such    statements[.]”

13   8 U.S.C. § 1158(b)(1)(B)(iii).        “We defer . . . to an IJ’s

14   credibility determination unless, from the totality of the

15   circumstances, it is plain that no reasonable fact-finder

16   could make such an adverse credibility ruling.”            Xiu Xia Lin

17   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei

18   Gao, 891 F.3d at 76.          An IJ may, “either expressly or

19   impliedly,” discredit an applicant’s testimony and evidence

20   under the “maxim falsus in uno, falsus in omnibus [false in

21   one thing, false in everything].”             Siewe v. Gonzales, 480

22   F.3d 160, 170–71 (2d Cir. 2007) (internal quotation marks


                                       3
 1   omitted, brackets in original).        The IJ appropriately did so

 2   here because Chen admitted that the detailed testimony of

 3   past persecution that he gave under oath at his credible fear

 4   interview was not true.       The IJ was not required to credit

 5   Chen’s recantation of these statements or his explanation

 6   that a snakehead told him to lie and he later recanted because

 7   he was no longer allowed to lie after being baptized.             See

 8   Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A

 9   petitioner must do more than offer a plausible explanation

10   for his inconsistent statements to secure relief; he must

11   demonstrate that a reasonable fact-finder would be compelled

12   to credit his testimony.” (internal quotations omitted)).

13        Chen did not otherwise meet his burden of proof.         He did

14   not allege past persecution before the IJ, so he had the

15   burden to establish a well-founded fear of future persecution

16   by   showing    he   would   be   “singled   out   individually   for

17   persecution” based on his practice of Christianity or that

18   there was a “pattern or practice” of persecution of Christians

19   in China.      8 C.F.R. § 1208.13(b)(2); Jian Liang v. Garland,

20   10 F.4th 106, 117 (2d Cir. 2021).       The agency did not err in

21   concluding that Chen did not establish a well-founded fear of

22   persecution under either theory.


                                        4
 1          Chen did not establish that he would be singled out for

 2   persecution because he did not document the alleged events in

 3   China or show that Chinese authorities were aware of his

 4   practice of Christianity in the United States.                 See Hongsheng

 5   Leng v. Mukasey, 528 F.3d 135, 137 (2d Cir. 2008) (“in order

 6   to establish eligibility for relief based exclusively on

 7   activities      undertaken    after    . . .    arrival    in       the   United

 8   States, an alien must make some showing that authorities in

 9   his country of nationality are (1) aware of his activities or

10   (2) likely to become aware of his activities”); see also Jian

11   Liang, 10 F.4th at 117.

12          Even    assuming      Chen     would    continue        to     practice

13   Christianity at an unregistered church in China, the agency

14   reasonably concluded that he did not establish a well-founded

15   fear    of    persecution    based    on   a   pattern    or    practice     of

16   persecution of Christians because the record reflected varied

17   treatment of Christians throughout China and because his

18   grandmother continued to practice Christianity unharmed.                    See

19   Jian Liang, 10 F.4th at 117 (holding that petitioner failed

20   to meet burden where State Department reports established

21   that “treatment of Christians in China varies by locality”

22   and petitioner’s evidence did not show persecution occurring


                                           5
 1   in his home province); Melgar de Torres v. Reno, 191 F.3d

 2   307, 313 (2d Cir. 1999) (finding asylum applicant’s fear of

 3   persecution not well-founded in part because her mother and

 4   daughters continued to live unharmed in applicant’s native

 5   country).

 6       Given   Chen’s   admission   that   he    lied   under   oath   to

 7   fabricate a past persecution claim and the lack of evidence

 8   to support a pattern-or-practice claim, the agency did not

 9   err in concluding that he failed to meet his burden of proof.

10   See 8 U.S.C. § 1158(b)(1)(B)(ii).            That determination is

11   dispositive of Chen’s asylum, withholding of removal, and CAT

12   protection claims because all three forms of relief were based

13   on the same factual predicate.       See Paul v. Gonzales, 444

14   F.3d 148, 156–57 (2d Cir. 2006).

15       For the foregoing reasons, the petition for review is

16   DENIED.   All pending motions and applications are DENIED and

17   stays VACATED.

18                                FOR THE COURT:
19                                Catherine O’Hagan Wolfe,
20                                Clerk of Court




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