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. 08 -38 36 -ag Zen v. Holder BIA Morace , IJ A094-789- 123 

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

# SUM MARY ORDE R Rulings by summary o r de r 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 p a r ty m ust cite either the Federal Appendix or an electronic dat ab a s e (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 27 day of January, two thousand ten. th 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge , 9 PIERRE N. LEVAL, 10 PETER W. HALL, 11 Circuit Judges. 12 13

_______________________________________ 14 15 FEI LONG ZEN, ALSO KNOWN AS FEI LONG 16 ZENG, 17 Petitioner, 18 19 v. 08-3836-ag 20 NAC 21 ERIC H. HOLDER JR., UNITED STATES 22 ATTORNEY GENERAL, * 23 Respondent. 24 25

______________________________________2 1 FOR PETITIONER: Liu Yu, New York, New York. 2 3 FOR RESPONDENT: Tony West, Assistant Attorney 4 General, Civil Division; Douglas E. 5 Ginsburg, Senior Litigation Counsel, 6 Office of Immigration Litigation; 7 Daniel I. Smulow, Civil Division, 8 United States Department of Justice, 9 Washington, D.C. 10 1 1 UPON DUE CONSIDERATION of this petition for review of a 1 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 1 4 is DENIED. 1 5 Petitioner Fei Long Zen, a native and citizen of the 1 6 People’s Republic of China, seeks review of a July 14, 2008 1 7 order of the BIA affirming the February 13, 2007 decision of 1 8 Immigration Judge (“IJ”) Philip Morace denying his 1 9 application for asylum, withholding of removal, and relief 2 0 under the Convention Against Torture (“CAT”). In re Fei 2 1 Long Zen, No. A094-789-123 (B.I.A. July 14, 2008), aff’g No. 2 2 A094-789-123 (Immig. Ct. N.Y. City Feb. 13, 2007). We 2 3 assume the parties’ familiarity with the underlying facts 2 4 and procedural history in this case. 2 5 We review the agency’s factual findings, including 2 6 adverse credibility findings, under the substantial evidence 2 7 standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.3 1 Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). For asylum 2 applications governed by the REAL ID Act of 2005, the agency 3 may, considering the totality of the circumstances, base a 4 credibility finding on an asylum applicant’s demeanor, the 5 plausibility of his or her account, and inconsistencies in 6 his or her statements, without regard to whether they go “to 7 the heart of the applicant’s claim.” 8 U.S.C. § 8 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility 9 determination unless, from the totality of the 1 0 circumstances, it is plain that no reasonable fact-finder 1 1 could make such an adverse credibility ruling.” Xiu Xia Lin 1 2 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We review de 1 3 novo questions of law and the application of law to 1 4 undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 1 5 F.3d 99, 110 (2d Cir. 2008). 1 6 Substantial evidence supports the IJ’s adverse 1 7 credibility determination. See Corovic, 519 F.3d at 95. In 1 8 finding Zen not credible, the IJ relied upon Zen’s: (1) 1 9 inconsistent testimony concerning when and in what country 2 0 he began practicing Falun Gong; (2) inconsistent testimony 2 1 concerning whether he or the police had paid for his 2 2 hospitalization following an alleged police beating; (3)4 1 inconsistent testimony regarding whether he was discharged 2 from the hospital or left without permission; and 3 (4) implausible testimony that he left the hospital without 4 permission, did not go into hiding, and was not arrested by 5 the police when they visited him at his home. Zen does not 6 challenge the IJ’s reliance on the inconsistency regarding 7 whether he left the hospital with permission. That 8 inconsistency stands as a valid basis for the IJ’s adverse 9 credibility determination. Shunfu Li v. Mukasey, 529 F.3d 1 0 141, 146 (2d Cir. 2008). Although Zen argues that he 1 1 explained some of the remaining discrepancies, a reasonable 1 2 factfinder would not have been compelled to credit his 1 3 explanations. See Majidi v. Gonzales, 430 F.3d 77, 80-81 1 4 (2d Cir. 2005). 1 5 Zen asserts that he was not given the opportunity to 1 6 explain testimony that the IJ found implausible. However, 1 7 because he did not raise that argument before the BIA, we 1 8 decline to consider it. See Lin Zhong v. U.S. Dep't of 1 9 Justice, 480 F.3d 104, 119-20 (2d Cir. 2007). 2 0 Since the IJ reasonably found Zen’s testimony not 2 1 credible, it was not improper for the IJ to find that he 2 2 failed to rehabilitate his testimony with corroborating5 1 evidence. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d 2 Cir. 2007); see also Maladho Djehe Diallo, 445 F.3d 624, 3 633-34 (2d Cir. 2006). 4 The adverse credibility finding supports the IJ’s 5 denial of the applications for asylum, withholding of 6 removal, and CAT relief because all three claims were based 7 on the same factual predicate. See Paul v. Gonzales, 444 8 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of 9 Justice, 426 F.3d 520, 523 (2d Cir. 2005). 1 0 For the foregoing reasons, the petition for review is 1 1 DENIED. As we have completed our review, any pending motion 1 2 for a stay of removal in this petition is DISMISSED as moot. 1 3 Any pending request for oral argument in this petition is 1 4 DENIED in accordance with Federal Rule of Appellate 1 5 Procedure 34(a)(2), and Second Circuit Local Rule 34(b). 16 1 7 FOR THE COURT: 1 8 Catherine O’Hagan Wolfe, Clerk 19