08-2782-ag
Chen v. Holder
BIA
Hladylowycz, IJ
A79 092 310
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 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 26 th day of January, two thousand ten.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 ROBERT D. SACK,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 HUANG CHEN,
14 Petitioner,
15
16 v. 08-2782-ag
17 NAC
18 ERIC H. HOLDER, JR., ATTORNEY GENERAL, *
19 Respondent.
20 _______________________________________
21
22 FOR PETITIONER: Yee Ling Poon, Robert Duk-Hwan Kim,
23 New York, New York.
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder, Jr. is automatically substituted
for former Attorney General Michael B. Mukasey as respondent in this
case.
1 FOR RESPONDENT: Gregory G. Katsas, Assistant
2 Attorney General, Francis W. Fraser,
3 Senior Litigation Counsel, T. Bo
4 Stanton, Attorney, Office of
5 Immigration Litigation, Civil
6 Division, United States Department
7 of Justice, Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 decision of the Board of Immigration Appeals (“BIA”), it is
11 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
12 review is DENIED in part and DISMISSED in part.
13 Petitioner Huang Chen, a native and citizen of the
14 People’s Republic of China, seeks review of a May 12, 2008
15 order of the BIA affirming the April 24, 2002 decision of
16 Immigration Judge (“IJ”) Roxanne Hladylowycz, denying his
17 applications for asylum, withholding of removal, and relief
18 under the Convention Against Torture (“CAT”). In re Huang
19 Chen, No. A79 092 310 (B.I.A. May 12, 2008), aff’g No. A79
20 092 310 (Immig. Ct. N.Y. City, Apr. 24, 2002). We assume
21 the parties’ familiarity with the underlying facts and
22 procedural history of the case.
23 As an initial matter, because Chen failed to challenge
24 the IJ’s denial of his CAT claim before the BIA, we lack
25 jurisdiction to consider this unexhausted argument. See
26 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119
2
1 (2d Cir. 2006) (citing Beharry v. Ashcroft, 329 F.3d 51, 59
2 (2d Cir. 2003)). The petition for review is dismissed to
3 that extent.
4 When the BIA adopts the decision of the IJ and
5 supplements the IJ’s decision, this Court reviews the
6 decision of the IJ as supplemented by the BIA. See Yan Chen
7 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review
8 the agency’s factual findings, including adverse credibility
9 determinations, under the substantial evidence standard,
10 treating them as “conclusive unless any reasonable
11 adjudicator would be compelled to conclude to the contrary.”
12 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519
13 F.3d 90, 95 (2d Cir. 2008). However, we will vacate and
14 remand for new findings if the agency’s reasoning or its
15 fact-finding process was sufficiently flawed. See Cao He
16 Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.
17 2005). We review de novo questions of law and the
18 application of law to undisputed fact. See, e.g., Salimatou
19 Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
20 Upon our review of the record, we conclude that the
21 agency’s adverse credibility determination is supported by
22 substantial evidence. See Yuanliang Liu v. U.S. Dep’t of
3
1 Justice, 455 F.3d 106, 110-111 (2d Cir. 2006). The agency
2 found several aspects of Chen’s testimony implausible; for
3 example, Chen claimed that he did not know the legal age to
4 marry when he had testified that he and his girlfriend had
5 attempted to marry but were denied. While Chen offers
6 explanations for the implausibilities, such explanations –
7 even if rational – “do not defeat a finding that the account
8 is implausible.” See Ying Li v. BCIS, 529 F.3d 79, 83 (2d
9 Cir. 2008). Indeed, “when an adverse credibility finding is
10 based partly or entirely on implausibility, we review the
11 entire record, not whether each unusual or implausible
12 feature of the account can be explained or rationalized.”
13 Id. at 82. Because our review of an IJ’s adverse
14 credibility finding is “especially limited and highly
15 deferential,” id. at 81, substantial evidence supports the
16 IJ’s finding where, taken as a whole, the IJ could conclude
17 that the picture that emerged from Chen’s story was
18 implausible, see id. at 82-83.
19 We need not address Chen’s “other resistance” claim in
20 determining whether he is eligible for asylum and
21 withholding of removal because the adverse credibility
22 determination is dispositive in this case. See Paul v.
4
1 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Wu Biao Chen v.
2 INS, 344 F.3d 272, 275 (2d Cir. 2003).
3 For the foregoing reasons, the petition for review is
4 DENIED in part and DISMISSED in part. Having completed our
5 review, we DISMISS the petitioner's pending motion for a
6 stay of removal as moot.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
11
5