08-3463-ag

Chen v. Holder

BIA

Ferris, IJ

A 098 000 955

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 JOSEPH M. McLAUGHLIN,

8 BARRINGTON D. PARKER,

9 GERARD E. LYNCH,

10 Circuit Judges.

11

12 _______________________________________

13

14 HAI LIN CHEN, a.k.a. HAILINS CHEN,

15 a.k.a. HAILIN CHEN,

16 Petitioner, 

17

18 v. 08-3463-ag

19 NAC

20 ERIC H. HOLDER, JR., ATTORNEY GENERAL, 

21 UNITED STATES DEPARTMENT OF JUSTICE,

22 Respondent.

23 ______________________________________
2

1 FOR PETITIONER: Pro Se

2

3 FOR RESPONDENT: Michael F. Hertz, Acting Assistant

4 Attorney General, Barry J.

5 Pettinato, Assistant Director, John

6 D. Williams, Trial Attorney, Office

7 of Immigration Litigation, Civil

8 Division, United States Department

9 of Justice, 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 Hai Lin Chen, a native and citizen of China,

16 seeks review of the June 17, 2008 order of the BIA affirming

17 the November 8, 2006 decision of Immigration Judge (“IJ”)

18 Noel Ann Ferris denying his application for asylum and

19 withholding of removal. In re Hai Lin Chen, No. A 098 000

20 955 (B.I.A. June 17, 2008), aff’g No. A 098 000 955 (Immig.

21 Ct. N.Y. City Nov. 8, 2006). We assume the parties’

22 familiarity with the underlying facts and procedural history

23 in this case.

24 When the BIA adopts the decision of the IJ and

25 supplements the IJ’s decision, this Court reviews the

26 decision of the IJ as supplemented by the BIA. See Yan Chen

27 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review
3

1 the agency’s factual findings, including adverse credibility

2 determinations, under the substantial evidence standard. 

3 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519

4 F.3d 90, 95 (2d Cir. 2008). We review de novo questions of

5 law and the application of law to undisputed fact. See

6 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). 

7 Chen has waived any challenge to the agency’s finding

8 that he failed to establish that he endured past

9 persecution. In his brief before this Court, Chen argues,

10 without any elaboration, that “the BIA abused its discretion

11 in failing to consider that [he] established . . . past

12 persecution.” Even construed broadly, see Weixel v. Board

13 of Educ., 287 F.3d 138, 145-46 (2d Cir. 2002), Chen’s pro se

14 brief does not sufficiently challenge the agency’s specific

15 finding that he could not establish past persecution in the

16 absence of any evidence, see Yueqing Zhang v. Gonzales, 426

17 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (finding that

18 issues not sufficiently argued in the briefs are considered

19 waived and normally will not be addressed on appeal in the

20 absence of manifest injustice). 

21 With respect to Chen’s Falun Gong claim, in his brief

22 before this Court, Chen fails to challenge the agency’s
4

1 findings that: (1) his insolent demeanor undermined his

2 credibility; and (2) his testimony that he met with a Falun

3 Gong group 36 times but did not know any of the members’

4 names or ask them to submit affidavits on his behalf was

5 implausible. Thus, he has waived any challenge to those

6 findings, id., and they stand as valid bases for the IJ’s

7 adverse credibility determination, see Shunfu Li v. Mukasey,

8 529 F.3d 141, 146-47 (2d Cir. 2008). 

9 As to the findings that Chen does challenge, each was

10 proper. Chen argues in his brief that the IJ erred by: (1)

11 finding him not credible without identifying inconsistencies

12 and omissions that were central to his persecution claim;

13 and (2) failing to provide him with an opportunity to

14 explain any perceived discrepancies in the record. The

15 first of these arguments is without merit in light of the

16 REAL ID Act of 2005, under which the IJ was entitled to rely

17 on “any inconsistency or omission” in making her adverse

18 credibility determination, whether or not that inconsistency

19 was central to Chen’s claim. 8 U.S.C. § 1158(b)(1)(B)(iii);

20 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). 

21 As to Chen’s second argument, it fails because the record

22 reveals that the IJ asked clear and direct questions, and
5

1 repeated those questions in order to provide Chen with

2 numerous opportunities to explain discrepancies. See Majidi

3 v. Gonazales, 430 F.3d 77, 81 (2d Cir. 2005) (holding that

4 “an IJ may rely on an inconsistency in an asylum applicant’s

5 account to find that applicant not credible . . . without

6 soliciting from the applicant an explanation for the

7 inconsistency”). Thus, we are not compelled to disagree

8 with the IJ’s denial of Chen’s application for asylum and

9 withholding of removal because the only evidence that he

10 would be persecuted depended on his credibility. See Xiu

11 Xia Lin, 534 F.3d at 167; Paul v. Gonzales, 444 F.3d 148,

12 156 (2d Cir. 2006).

13 For the foregoing reasons, the petition for review is

14 DENIED. 

15

16 FOR THE COURT: 

17 Catherine O’Hagan Wolfe, Clerk

18

19

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