08 -42 78 -ag

Chen v. Hold er BIA Bukszpan, IJ A200-024- 889 

### UNITE D STA TES C OURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY O RDE R

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED O N O RA FTER J

ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL R ULE OF APPELLATE P ROCEDURE 32.1 AN D THIS COURT ’ S L OCAL R ULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PART Y 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 8 day of January, two thousand ten. th 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 GUIDO CALABRESI, 10 DEBRA ANN LIVINGSTON, 11 Circuit Judges. 12

_______________________________________ 13 14 CHUN CHEN, 15 Petitioner, 16 17 v. 08-4278-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22

______________________________________ 23 24 FOR PETITIONER: Nathaniel K. Hsieh, Hsieh & 25 Associates, PC, Chicago, Illinois.2 1 FOR RESPONDENT: Tony West, Assistant Attorney 2 General; M. Jocelyn Lopez-Wright, 3 Senior Litigation Counsel; Judith R. 4 O’Sullivan, Trial Attorney, Office 5 of Immigration Litigation, United 6 States Department of Justice, Civil 7 Division, Washington, D.C. 8 9 UPON DUE CONSIDERATION of this petition for review of a 1 0 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 1 ORDERED, ADJUDGED, AND DECREED that the petition for review 1 2 is DENIED. 1 3 Petitioner Chun Chen, a native and citizen of the 1 4 People’s Republic of China, seeks review of a July 30, 2008 1 5 order of the BIA affirming the July 30, 2007 decision of 1 6 Immigration Judge (“IJ”) Joanna Miller Bukszpan denying his 1 7 application for asylum, withholding of removal, and relief 1 8 under the Convention Against Torture (“CAT”). In re Chun 1 9 Chen, No. A200-024-889 (B.I.A. July 30, 2008), aff’g No. 2 0 A200-024-889 (Immig. Ct. N.Y. City July 30, 2007). We 2 1 assume the parties’ familiarity with the underlying facts 2 2 and procedural history in this case. 2 3 When the BIA agrees with the IJ’s conclusion that a 2 4 petitioner is not credible and, without rejecting any of the 2 5 IJ’s grounds for decision, emphasizes particular aspects of 2 6 that decision, this Court reviews both the BIA’s and IJ’s3 1 opinions -- or more precisely, the Court reviews the IJ’s 2 decision including the portions not explicitly discussed by 3 the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d 4 Cir. 2005). We review the agency’s factual findings, 5 including adverse credibility findings, under the 6 substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); 7 see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). 8 We review de novo questions of law and the application of 9 law to undisputed fact. See, e.g., Salimatou Bah v. 1 0 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). 1 1 Substantial evidence supports the IJ’s adverse 1 2 credibility determination. See Corovic, 519 F.3d at 95. 1 3 The IJ cited: (1) inconsistencies between Chen’s testimony 1 4 and his cousin’s testimony regarding the date Chen last 1 5 practiced Falun Gong; (2) inconsistencies between his 1 6 testimony and his cousin’s testimony regarding where he 1 7 practiced Falun Gong; (3) inconsistencies between his 1 8 testimony and his cousin’s testimony regarding the apartment 1 9 they allegedly shared and the family members they lived 2 0 with; (4) inconsistencies between his testimony and his 2 1 written statement regarding the year in which he was 2 2 arrested; and (5) Chen’s lack of knowledge about the Falun4 1 Gong flyers he allegedly posted. Chen’s brief argues that 2 several of these inconsistencies were too minor to support 3 an adverse credibility determination. However, under the 4 REAL ID Act, which applied to Chen’s application for relief, 5 “an IJ may rely on any inconsistency or omission in making 6 an adverse credibility determination as long as the 7 ‘totality of the circumstances’ establishes that an asylum 8 applicant is not credible.” Xiu Xia Lin v. Mukasey, 534 9 F.3d 162, 167 (2d Cir. 2008) (emphasis in original); see 1 0 Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007) 1 1 (finding that “the REAL ID Act no longer requires the trier 1 2 of fact to find a nexus between inconsistencies and the 1 3 ‘heart of the claim’”). Moreover, although Chen offered 1 4 explanations for these discrepancies before the agency, no 1 5 reasonable fact finder would have been compelled to credit 1 6 them. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 1 7 2005). 1 8 Given the discrepancies the IJ identified, substantial 1 9 evidence supports the agency’s adverse credibility 2 0 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 2 1 Lin, 534 F.3d at 167. Therefore, the IJ properly denied 2 2 Chen’s application for asylum. The applications for5 1 withholding of removal and CAT relief were also properly 2 denied because the only evidence that Chen would be 3 persecuted or tortured depended on his credibility. See 4 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong 5 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 6 2005).

For the foregoing reasons, the petition for review is 7 8 DENIED. As we have completed our review, any pending motion 9 for a stay of removal in this petition is DISMISSED as moot. 1 0 Any pending request for oral argument in this petition is 1 1 DENIED in accordance with Federal Rule of Appellate 1 2 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 13 14 1 5 FOR THE COURT: 1 6 Catherine O’Hagan Wolfe, Clerk 17 1 8 By:___________________________