Chen vs USDOJ [Summ. Ord.], (2nd Cir. 2006)

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND

MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER

COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT

IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR

PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 6th

day of February, two thousand and six.

PRESENT:

HON. JOHN M. WALKER, JR.,

Chief Judge,

HON. CHESTER J. STRAUB,

HON. ROBERT D. SACK,

Circuit Judges.

Shou Yong Chen,

Petitioner,

-v.- No. 03-41064-ag

NAC

United States Department of Justice,

Attorney General Alberto Gonzales,

Respondent.

FOR PETITIONER: Bruno Joseph Bembi, Esq., Hempstead, New York.

FOR RESPONDENT: Robert G. McCampbell, United States Attorney for the Western

District of Oklahoma, Steven K. Mullins, Assistant United States

Attorney, Oklahoma City, Oklahoma.

UPON DUE CONSIDERATION of this petition for review of a decision of the Board of

Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the

petition for review be GRANTED in part and DENIED in part.

Shou Yong Chen, through counsel, petitions this Court for review of the BIA's decision affirming the decision of an immigration judge ("IJ") denying his application for asylum, withholding of removal, and Convention Against Torture ("CAT") relief. We assume the parties' familiarity with the underlying facts and procedural history.

This Court reviews the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Jin Hui Gao v. United States Att'y Gen., 400 F.3d 963, 964 (2d Cir. 2005); Zhou Yun Zhang v. INS, 386 F.3d 66, 73-79 (2d Cir. 2004); Ramsameachire v. Ashcroft, 357 F.3d 169, 178-83 (2d Cir. 2004); Secaida Rosales v. INS, 331 F.3d 297, 306-13 (2d Cir. 2003); Diallo v. INS, 232 F.3d 279, 286-88 (2d Cir. 2000).

Here, the BIA upheld the IJ's determination that Chen's testimony was incredible based on the implausible nature of his testimony and the contradictory documents submitted in connection with his asylum application. Specifically, the BIA found Chen's testimony that he was able to procure certain government-issued documents, once in person, while in hiding from family planning officials to be implausible. Chen's explanation that his mother was able to receive the documents while he was evading family planning officials was also implausible. See Secaida-Rosales, 331 F.3d at 307 (quoting Diallo, 232 F.3d at 287). Because the IJ's adverse credibility finding was based on specific examples of inherently improbable testimony and "contradictory evidence," see Dong v. Ashcroft, 406 F.3d 110, 111 (2d Cir. 2005) (per curiam), the BIA was not in error when it affirmed the IJ's decision. Because Chen has not satisfied the standard for granting asylum, he cannot meet the higher standard for granting withholding of removal. See Ramsameachire, 357 F.3d at 178.

The BIA erred, however, in determining that Chen failed to meet the standard for establishing a claim for relief under the CAT, for reasons "analogous" to his failure to establish eligibility of removal. Id. at 184-85 (noting that the CAT inquiry is independent of the asylum analysis and therefore the BIA's decision with respect to an alien's claims for asylum and withholding of removal should never, in itself, be determinative of the alien's CAT claim). Because the BIA improperly denied Chen's claim for relief under the CAT, the petition is granted, and the case is remanded to the BIA to consider Chen's claim under the CAT independently of his failure to establish the requirements for asylum. 8 U.S.C. § 208.16(c)(2); 8 C.F.R. § 208.18(a); see also Wang v. Ashcroft, 320 F.3d 130, 133 (2d Cir. 2003). Nothing in this order should be construed to suggest what result the BIA should arrive at after its review of Chen's claim for relief under CAT.

For the foregoing reasons, Chen's pending motion for a stay of removal in this petition is GRANTED. His petition insofar as it seeks review of his denial of asylum and withholding of removal is DENIED; insofar as it pertains to relief under CAT it is remanded for further proceedings consistent with this order.

FOR THE COURT: Roseann B. MacKechnie, Clerk By:

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