08-4773-ag
Chen v. Holder
BIA
Chase, IJ
A097 949 749
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 20 th day of January, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 GUANG CHEN,
15 Petitioner,
16
17 v. 08-4773-ag
18 NAC
19 ERIC H. HOLDER, Jr., U.S. ATTORNEY
20 GENERAL, 1
21 Respondent.
22 _______________________________________
1
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 PETITIONER: Steven A. Mundie, New York, New
2 York.
3
4 FOR RESPONDENT: Tony West, Assistant Attorney
5 General, Francis W. Fraser, Senior
6 Litigation Counsel, W. Daniel Shieh,
7 Trial Attorney, Office of
8 Immigration Litigation, Civil
9 Division, United States Department
10 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Guang Chen, a native and citizen of the
6 People’s Republic of China, seeks review of an August 29,
7 2008 order of the BIA affirming the February 27, 2007
8 decision of Immigration Judge (“IJ”) Jeffrey S. Chase,
9 denying his application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Guang Chen, No. A097 949 749 (B.I.A. Aug. 29, 2008),
12 aff’g No. A097 949 749 (Immig. Ct. N.Y. City Feb. 27, 2007).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history of the case.
15 When the BIA affirms the IJ’s decision in some respects
16 but not others, this Court reviews the IJ’s decision as
17 modified by the BIA decision. See Xue Hong Yang v. U.S.
2
1 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We
2 review the agency’s factual findings, including adverse
3 credibility determinations, under the substantial evidence
4 standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.
5 Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We review de novo
6 questions of law and the application of law to undisputed
7 fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d
8 Cir. 2008).
9 Because Chen filed his asylum application after May 11,
10 2005, the amendments made to the Immigration and Nationality
11 Act by the REAL ID Act of 2005 apply to his asylum
12 application. See Pub. L. No. 109-13, § 101(h)(2), 119 Stat.
13 231, 305 (2005). For asylum applications governed by the
14 REAL ID Act, the agency may, considering the totality of the
15 circumstances, base a credibility finding on an asylum
16 applicant’s demeanor, the plausibility of his or her
17 account, and inconsistencies in his or her statements,
18 without regard to whether they go “to the heart of the
19 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see
20 Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007).
21 Substantial evidence supports the agency’s adverse
22 credibility determination. The BIA affirmed the IJ’s
23 adverse credibility determination based on three
3
1 discrepancies between Chen’s testimony and his asylum
2 application. Under the REAL ID Act, the IJ properly relied
3 on those inconsistencies. See 8 U.S.C.§ 1158(b)(1)(B)(iii);
4 see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
5 2008).
6 Although Chen attempts to explain his inconsistent
7 testimony in his opening brief, he failed to present those
8 explanations before the BIA, and we will not consider them
9 in the first instance. See 8 U.S.C. § 1252(d)(1); Lin Zhong
10 v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1(b), 119-20
11 (2d Cir. 2007).
12 Because the IJ’s adverse credibility determination was
13 supported by substantial evidence, we need not reach his
14 alternative finding that, even assuming Chen’s credibility,
15 he failed to meet his burden of proof.
16 As the only evidence of a threat to Chen’s life or
17 freedom depended upon his credibility, the adverse
18 credibility determination in this case necessarily precludes
19 success on his claims for asylum and withholding of removal
20 because both claims were based on the same factual
21 predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
22 2006). Chen does not challenge the agency’s denial of his
23 CAT claim in his brief to this Court.
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
13
14 By:____________________________
5