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.

08-4865-ag

Sun v. Holder

BIA

Gordon-Uruakpa, IJ

A094 794 436

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 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

24
2

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

10 UPON DUE CONSIDERATION of this petition for review of a

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

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

13 is DENIED.

14 Gong Xin Sun, a native and citizen of the People’s

15 Republic of China, seeks review of a September 8, 2008,

16 order of the BIA affirming the March 6, 2007, decision of

17 Immigration Judge (“IJ”) Vivienne Gordon-Uruakpa, which

18 denied his application for asylum, withholding of removal,

19 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’g No. A094 794 436 (Immig. Ct. N.Y. City Mar. 6, 2007). 

22 We assume the parties’ familiarity with the underlying facts

23 and procedural history in this case.

24 Under the circumstances of this case, we review the

25 IJ’s decision as modified by the BIA’s decision, i.e., minus

26 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, 522
3

1 (2d Cir. 2005). The applicable standards of review are

2 well-established. 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

10 his or her statements, without regard to whether they go “to

11 the heart of the applicant’s claim.” See 8 U.S.C. 

12 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

13 167 (2d Cir. 2008). In finding Sun not credible, the IJ

14 relied on the fact that, although Sun testified that he had

15 no proof of his membership in his underground church in

16 China, he submitted a certificate from Baisheng underground

17 church stating that he had been a member since December

18 2004. The IJ also based her adverse credibility

19 determination on: (1) Sun’s inconsistent testimony regarding

20 whether he was beaten while imprisoned for three days; and

21 (2) Sun’s inconsistent claims regarding when police raided

22 his house while he was congregating there with fellow church
4

1 members. Each of these was a valid basis for the IJ’s

2 adverse credibility determination. See 8 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

7 77, 80-81 (2d Cir. 2005). Finally, contrary 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

10 draw an adverse inference based on Sun’s failure to provide

11 such evidence, see Biao Yang v. Gonzales, 496 F.3d 268, 273

12 (2d Cir. 2007). 

13 Ultimately, because no reasonable fact-finder would be

14 compelled to conclude to the contrary, the agency’s adverse

15 credibility determination was supported by substantial

16 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

17 534 F.3d at 165-66. Thus, the agency properly denied Sun’s

18 application for asylum, withholding of removal, and CAT

19 relief where all three claims were based on the same factual

20 predicate. See 8 C.F.R. § 208.13(b). See Paul v. Gonzales,

21 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S.

22 Dep’t. of Justice, 426 F.3d 520, 523 (2d Cir. 2005). 
5

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 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

11

12

13