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. 

08-3836-ag

Zen v. Holder

BIA

Morace, IJ

A094-789-123

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 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

11 UPON DUE CONSIDERATION of this petition for review of a

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

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

14 is DENIED.

15 Petitioner Fei Long Zen, a native and citizen of the

16 People’s Republic of China, seeks review of a July 14, 2008

17 order of the BIA affirming the February 13, 2007 decision of

18 Immigration Judge (“IJ”) Philip Morace denying his

19 application for asylum, withholding of removal, and relief

20 under the Convention Against Torture (“CAT”). In re Fei

21 Long Zen, No. A094-789-123 (B.I.A. July 14, 2008), aff’g No.

22 A094-789-123 (Immig. Ct. N.Y. City Feb. 13, 2007). We

23 assume the parties’ familiarity with the underlying facts

24 and procedural history in this case.

25 We review the agency’s factual findings, including

26 adverse credibility findings, under the substantial evidence

27 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

10 circumstances, it is plain that no reasonable fact-finder

11 could make such an adverse credibility ruling.” Xiu Xia Lin

12 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We review de

13 novo questions of law and the application of law to

14 undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529

15 F.3d 99, 110 (2d Cir. 2008).

16 Substantial evidence supports the IJ’s adverse

17 credibility determination. See Corovic, 519 F.3d at 95. In

18 finding Zen not credible, the IJ relied upon Zen’s: (1)

19 inconsistent testimony concerning when and in what country

20 he began practicing Falun Gong; (2) inconsistent testimony

21 concerning whether he or the police had paid for his

22 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

10 141, 146 (2d Cir. 2008). Although Zen argues that he

11 explained some of the remaining discrepancies, a reasonable

12 factfinder would not have been compelled to credit his

13 explanations. See Majidi v. Gonzales, 430 F.3d 77, 80-81

14 (2d Cir. 2005). 

15 Zen asserts that he was not given the opportunity to

16 explain testimony that the IJ found implausible. However,

17 because he did not raise that argument before the BIA, we

18 decline to consider it. See Lin Zhong v. U.S. Dep't of

19 Justice, 480 F.3d 104, 119-20 (2d Cir. 2007). 

20 Since the IJ reasonably found Zen’s testimony not

21 credible, it was not improper for the IJ to find that he

22 failed to rehabilitate his testimony with corroborating
5

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).

10 For the foregoing reasons, the petition for review is

11 DENIED. As we have completed our review, any pending motion

12 for a stay of removal in this petition is DISMISSED as moot. 

13 Any pending request for oral argument in this petition is

14 DENIED in accordance with Federal Rule of Appellate

15 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

16

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk

19