Pursuant to Federal Rule of Appellate Procedure 1 43(c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case. 08 -48 65 -ag Sunv. Holder BIA Gordon-Ur

uak pa,IJ A094 794 436 

### UNITE D STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY O RDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERA L 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 day of January, two thousand ten. th 5 6 PRESENT: 7 JOSEPH M. McLAUGHLIN, 8 JOSÉ A. CABRANES, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges . 11 12

_______________________________________ 13 14 GONG XIN SUN, 15 Petitioner , 16 17 v. 08-4865-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 1 20 ATTORNEY GENERAL, 21 Respondent . 22

_______________________________________ 23 242 1 FOR PETITIONER: Michael Brown, New York, New York. 2 3 FOR RESPONDENT: Michael F. Hertz, Assistant Attorney 4 General; David V. Bernal, Assistant 5 Director; Lauren E. Fascett, Trial 6 Attorney, Office of Immigration 7 Litigation, United States Department 8 of Justice, Washington, D.C. 9 1 0 UPON DUE CONSIDERATION of this petition for review of a 1 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 2 ORDERED, ADJUDGED, AND DECREED, that the petition for review 1 3 is DENIED. 1 4 Gong Xin Sun, a native and citizen of the People’s 1 5 Republic of China, seeks review of a September 8, 2008, 1 6 order of the BIA affirming the March 6, 2007, decision of 1 7 Immigration Judge (“IJ”) Vivienne Gordon-Uruakpa, which 1 8 denied his application for asylum, withholding of removal, 1 9 and relief under the Convention Against Torture (“CAT”). In 20 re Gong Xin Sun , No. A094 794 436 (B.I.A. Sept. 8, 2008), 21 aff’gNo. A094 794 436 (Immig. Ct. N.Y. City Mar. 6, 2007). 2 2 We assume the parties’ familiarity with the underlying facts 2 3 and procedural history in this case. 2 4 Under the circumstances of this case, we review the 2 5 IJ’s decision as modified by the BIA’s decision, i.e., minus 2 6 the arguments for denying relief that the BIA rejected. See 27 Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 5223 1 (2d Cir. 2005). The applicable standards of review are well-established. 2 8 U.S.C. § 1252(b)(4)(B); see also Manzur 3 v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 4 2007). 5 For asylum applications governed by the REAL ID Act, 6 the agency may, considering the totality of the 7 circumstances, base a credibility finding on an asylum 8 applicant’s “demeanor, candor, or responsiveness,” the 9 plausibility of his or her account, and inconsistencies in 1 0 his or her statements, without regard to whether they go “to 1 1 the heart of the applicant’s claim.” See 8 U.S.C. 1 2 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008) 1 3 . In finding Sun not credible, the IJ 1 4 relied on the fact that, although Sun testified that he had 1 5 no proof of his membership in his underground church in 1 6 China, he submitted a certificate from Baisheng underground 1 7 church stating that he had been a member since December 2004. 1 8 The IJ also based her adverse credibility 1 9 determination on: (1) Sun’s inconsistent testimony regarding whether he was beaten while imprisoned for three days 2 0 ; and 2 1 (2) Sun’s inconsistent claims regarding when police raided 2 2 his house while he was congregating there with fellow church4

members. 1 Each of these was a valid basis for the IJ’s 2 adverse credibility determination. See8 U.S.C. 3 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167. 4 Moreover, to the extent Sun offered explanations for these 5 discrepancies, no reasonable factfinder would have been 6 compelled to credit them. See Majidi v. Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005) . Finally, contrary 7 to Sun’s 8 argument, the IJ was entitled to seek additional 9 corroborating evidence, 8 U.S.C. § 1158(b)(1)(B)(ii), and to 1 0 draw an adverse inference based on Sun’s failure to provide 1 1 such evidence, see Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). 12 Ultimately, because no reasonable fact-finder would be 13 1 4 compelled to conclude to the contrary, the agency’s adverse 1 5 credibility determination was supported by substantial 1 6 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 1 7 534 F.3d at 165-66. Thus, the agency properly denied Sun’s 1 8 application for asylum, withholding of removal, and CAT 1 9 relief where all three claims were based on the same factual 2 0 predicate. See 8 C.F.R. § 208.13(b). See Paul v. Gonzales , 2 1 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t. of Justice , 426 F.3d 520, 523 (2d Cir. 2005). 225

For the foregoing reasons, the petition for review is 1 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 FOR THE COURT: 1 0 Catherine O’Hagan Wolfe, Clerk 11 12 13