10-2005-ag Chen v. Holder BIA Hom, IJ A094 794 540 

### 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 24 th** **day of April, two thousand twelve.** 4 5 **PRESENT:** 6 7 **RALPH K. WINTER,** 8 **ROBERT A. KATZMANN,** 9 **DEBRA ANN LIVINGSTON,** 10 Circuit Judges**.** 11

**_______________________________________** 12 13 **DONG PIN CHEN,** 14 Petitioner**,** 15 16 **v. 10-2005-ag** 17 **NAC** 18 **ERIC H. HOLDER, JR., U.S. ATTORNEY** 19 **GENERAL,** 20 Respondent **.** 21

**______________________________________** 22 23 **FOR PETITIONER: Lee Ratner, New York, NY** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Christopher C. Fuller,** 27 **Senior Litigation Counsel; Zoe J.** 28 **Heller, Civil Division, Office of** 29 **Immigration Litigation, U.S.** 30 **Department of Justice, Washington** 31 **D.C.** 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Dong Pin Chen, a native and citizen of the People’s 5 Republic of China, seeks review of the April 23, 2010, order 6 of the BIA affirming the April 7, 2008, decision of 7 Immigration Judge (“IJ”) Sandy K. Hom denying his 8 application for asylum, withholding of removal, and relief 9 under the Convention Against Torture (“CAT”). In re Dong 10 Pin Chen , No. A094 794 540 (B.I.A. Apr. 23, 2010), aff’gNo. 11 A094 794 540 (Immig. Ct. N.Y. City Apr. 7, 2008). We assume 12 the parties’ familiarity with the underlying facts and 13 procedural history in this case. 14 Under the circumstances of this case, we have reviewed 15 both the IJ’s and the BIA’s opinions “for the sake of 16 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 17 2008). The applicable standards of review are well18 established. See 8 U.S.C. § 1252(b)(4)(B); Corovic v. 19 Mukasey, 519,F.3d 90, 95 (2d Cir. 2008); Xiu Xia Lin v. 20 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). As an initial 21 matter, Chen does not challenge the agency’s denial of CAT 22 relief or determination that he did not establish his 233 eligibility for relief based on his practice of Falun Gong 1 in the United States, and thus we do not address those 2 claims and address only the merits of Chen’s petition as it 3 pertains to the agency’s adverse credibility and burden 4 findings related to asylum and withholding of removal based 5 on past persecution. See Yueqing Zhang v. Gonzales , 426 6 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (providing that 7 “[i]ssues not sufficiently argued in the briefs are 8 considered waived and normally will not be addressed on 9 appeal”) (citation omitted). 10 Petitioner concedes that, following the passage of the 11 REAL ID Act, an ability to depart China using one’s own 12 passport may be an appropriate factor on which to base an 13 implausibility finding, **.** See Ying Li v. BCIS, 529 F.3d 79, 14 82-83 (2d Cir. 2008). In Ying Li , based on a “totality of 15 the circumstances” analysis, this Court upheld an adverse 16 credibility determination where petitioner: (1) claimed to 17 promote Falun Gong for over six years without ever learning 18 or practicing it herself; (2) claimed she was sought by 19 police, but testified that a known Falun Gong practitioner 20 openly visited her home and was never arrested; (3) departed 21 China from an airport using her own passport; and 22 (4) recited only “elementary information” about Falun Gong 234 and presented photographs of herself practicing Falun Gong 1 on only a single occasion. Id

. 2 However, petitioner argues that we have never held that 3 such an ability by itself is substantial evidence sufficient 4 to support an adverse credibility determination. See id

. 5 (holding that “when an adverse credibility finding is based 6 partly or entirely on implausibility, we review the entire 7 record, not whether each unusual or implausible feature of 8 the account can be explained or rationalized.”). We 9 disagree with this description of the record before us. The 10 adverse credibility decision in this matter was not based 11 solely on petitioner’s use of his own passport to leave 12 China but on the implausibility of his claim of persecution 13 given the overall context in which his passport was used. 14 Id.Petitioner testified that when he used his passport, he 15 was an escaped prisoner and in hiding and that the police 16 were looking for him “everywhere.” The finding that this 17 scenario was implausible hardly gave excessive, much less 18 exclusive, weight to petitioner’s use of his passport. Nor 19 is the finding otherwise irrational. Id. 20 We therefore need not address the agency’s alternative 21 determination that Chen failed to demonstrate that the harm 22 he suffered amounted to persecution. 235 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, any stay of 2 removal that the Court previously granted in this petition 3 is VACATED, and any pending motion for a stay of removal in 4 this petition is DISMISSED as moot. Any pending request for 5 oral argument in this petition is DENIED in accordance with 6 Federal Rule of Appellate Procedure 34(a)(2), and Second 7 Circuit Local Rule 34.1(b). 8
FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11 12