08 -34 63 -ag

Chen v. Holder BIA Ferris, IJ A 098 000 955 

### UNITED STATES COURT OF AP PEALS FOR THE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY O RDER 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 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 Hai Lin Chen, a native and citizen of China, 1 6 seeks review of the June 17, 2008 order of the BIA affirming 1 7 the November 8, 2006 decision of Immigration Judge (“IJ”) 1 8 Noel Ann Ferris denying his application for asylum and 1 9 withholding of removal. In re Hai Lin Chen , No. A 098 000 2 0 955 (B.I.A. June 17, 2008), aff’gNo. A 098 000 955 (Immig. 2 1 Ct. N.Y. City Nov. 8, 2006). We assume the parties’ 2 2 familiarity with the underlying facts and procedural history 2 3 in this case. 2 4 When the BIA adopts the decision of the IJ and 2 5 supplements the IJ’s decision, this Court reviews the 2 6 decision of the IJ as supplemented by the BIA. See Yan Chen 27 v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). We review3 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 novoquestions 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, 1 0 without any elaboration, that “the BIA abused its discretion 1 1 in failing to consider that [he] established . . . past 1 2 persecution.” Even construed broadly, see Weixel v. Board 13 of Educ. , 287 F.3d 138, 145-46 (2d Cir. 2002), Chen’s pro se 1 4 brief does not sufficiently challenge the agency’s specific 1 5 finding that he could not establish past persecution in the 1 6 absence of any evidence, see Yueqing Zhang v. Gonzales , 426 1 7 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (finding that 1 8 issues not sufficiently argued in the briefs are considered 1 9 waived and normally will not be addressed on appeal in the 2 0 absence of manifest injustice). 2 1 With respect to Chen’s Falun Gong claim, in his brief 2 2 before this Court, Chen fails to challenge the agency’s4 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 1 0 proper. Chen argues in his brief that the IJ erred by: (1) 1 1 finding him not credible without identifying inconsistencies 1 2 and omissions that were central to his persecution claim; 1 3 and (2) failing to provide him with an opportunity to 1 4 explain any perceived discrepancies in the record. The 1 5 first of these arguments is without merit in light of the 1 6 REAL ID Act of 2005, under which the IJ was entitled to rely 1 7 on “ anyinconsistency or omission” in making her adverse 1 8 credibility determination, whether or not that inconsistency 1 9 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). 2 1 As to Chen’s second argument, it fails because the record 2 2 reveals that the IJ asked clear and direct questions, and5 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 1 0 would be persecuted depended on his credibility. See Xiu 11 Xia Lin , 534 F.3d at 167; Paul v. Gonzales , 444 F.3d 148, 1 2 156 (2d Cir. 2006). 1 3 For the foregoing reasons, the petition for review is 1 4 DENIED. 15 1 6 FOR THE COURT: 1 7 Catherine O’Hagan Wolfe, Clerk 18 19 20