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 -31 74-ag Tia n v. Holder BIA Videla,IJ A079 683 166 

### UNITED STATES COURT OF AP PEALS FOR THE SECOND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARYO 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 22 day of January, two thousand ten. nd 5 6 PRESENT: 7 RALPH K. WINTER, 8 PIERRE N. LEVAL, 9 JOSÉ A. CABRANES, 10 Circuit Judges . 11 12

_______________________________________ 13 14 ZHI YUNG TIAN, 15 Petitioner , 16 17 v. 08-3174-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, * 21 Respondent . 22

_______________________________________ 23 24 252 1 FOR PETITIONER: Michael Brown, New York, New York. 2 3 FOR RESPONDENT: Michael F. Hertz, Assistant Attorney 4 General; Terri J. Scadron, Assistant 5 Director; Wendy Benner-León, 6 Attorney, Office of Immigration 7 Litigation, United States Department 8 of Justice, Washington, D.C. 9 1 0 UPON DUE CONSIDERATION of this petition for review of a 1 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 2 ORDERED, ADJUDGED, AND DECREED, that the petition for review 1 3 is DENIED. 1 4 Zhi Yung Tian, a native and citizen of the People’s 1 5 Republic of China, seeks review of a June 5, 2008 order of 1 6 the BIA, affirming the August 12, 2005 decision of 1 7 Immigration Judge (“IJ”) Gabriel C. Videla, which denied his 1 8 application for asylum, withholding of removal, and relief 1 9 under the Convention Against Torture (“CAT”). In re Zhi 20 Yung Tian , No. A079 683 166 (B.I.A. June 5, 2008), aff’gNo. 2 1 A079 683 166 (Immig. Ct. N.Y. City Aug. 12, 2005). We 2 2 assume the parties’ familiarity with the underlying facts 2 3 and procedural history in this case. 2 4 We review the agency’s factual findings, including 2 5 adverse credibility findings, under the substantial evidence 2 6 standard. See 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen 27 Sun v. BIA , 510 F.3d 377, 379 (2d Cir. 2007). We review de3 1 novoquestions of law and the application of law to 2 undisputed fact. Salimatou Bah v. Mukasey , 529 F.3d 99, 110 3 (2d Cir. 2008). 4 The only issue before us in this case is whether the 5 agency’s adverse credibility determination was supported by 6 substantial evidence. The agency found that Tian failed to 7 demonstrate that he was eligible for asylum or withholding 8 of removal based on past persecution. Tian claimed that he 9 was detained, beaten, and fined for violating the family 1 0 planning policy. Tian waived any challenge to the agency’s 1 1 denial of his applications for asylum and withholding of 1 2 removal based on his claimed fear of future persecution for 1 3 failing to pay an outstanding family planning fine. His 1 4 conclusory argument fails to challenge the agency’s finding 1 5 that he failed to demonstrate such a fear of persecution 1 6 when his wife remained unharmed in China for several years 1 7 despite their alleged outstanding family planning fine. See 18 Yueqing Zhang v. Gonzales , 426 F.3d 540, 545 n.7 (2d Cir. 1 9 2005). In addition, Tian abandoned any challenge to the 2 0 agency’s finding that he did not demonstrate his eligibility 2 1 for CAT relief by failing to raise any such challenge in his 2 2 brief. 2 3 Substantial evidence supports the agency’s finding that4 1 Tian was not credible as to his claim that he suffered 2 persecution when he was detained, beaten, and fined for 3 having violated the family planning policy. In finding him 4 not credible, the IJ reasonably relied on the implausibility 5 of Tian’s assertion that his wife returned home from hiding 6 to attend mandatory family planning examinations as well as 7 his confusing testimony regarding family planning officials’ 8 discovery of the birth of his second daughter. See Wensheng 9 Yan v. Mukasey , 509 F.3d 63, 66-67 (2d Cir. 2007); see also 10 Ying Li v. BCIS , 529 F.3d 79, 82 (2d Cir. 2008). 1 1 The IJ also reasonably found Tian not credible based in 1 2 part on the inconsistency between his statement in his 1 3 initial asylum application that his wife had been forcibly 1 4 aborted and his amended application and subsequent testimony 1 5 that his wife had not suffered such harm. See Borovikova v. 16 U.S. Dep’t of Justice , 435 F.3d 151, 158-60 (2d Cir. 2006). 1 7 In fact, Tian testified under oath that he was familiar with 1 8 the contents of his initial application for asylum and that 1 9 every statement in that application was correct and true. 2 0 Tian further admitted that the statement in his initial 2 1 asylum application that his wife had been forced to have an 2 2 abortion was read back to him by his attorney and that he 2 3 had not indicated that such fact was incorrect. In5 1 addition, contrary to Tian’s argument, the record does not 2 indicate that the IJ erred in finding his attempted 3 amendment of his application belated because he waited 4 almost two years to file such correction. 5 In finding him not credible, the IJ also reasonably 6 relied on Tian’s failure to submit sufficient evidence 7 corroborating his claim that family planning officials had 8 detained and beaten him for not paying a fine. See Biao 9 Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) 1 0 (recognizing that an applicant’s failure to corroborate his 1 1 or her testimony may bear on credibility because the absence 1 2 of corroboration in general makes an applicant unable to 1 3 rehabilitate testimony that has already been called into 1 4 question); see also Maladho Djehe Diallo v. Gonzales , 445 1 5 F.3d 624, 633-34 (2d Cir. 2006). 1 6 Ultimately, because a reasonable fact-finder would not 1 7 be compelled to conclude to the contrary, the IJ’s adverse 1 8 credibility determination was supported by substantial 1 9 evidence. See Shu Wen Sun , 510 F.3d at 379. Thus, the 2 0 agency reasonably denied Tian’s applications for asylum and 2 1 withholding of removal insofar as they were based on his 2 2 claim that he had suffered past persecution when he was 2 3 detained and beaten for violating the family planning 2 4 policy. See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir.6 1 2006) (recognizing that a withholding of removal claim 2 necessarily fails if the applicant is unable to show the 3 objective likelihood of persecution needed to make out an 4 asylum claim and the factual predicate for the claims is the 5 same).

For the foregoing reasons, the petition for review is 6 7 DENIED. As we have completed our review, any stay of 8 removal that the Court previously granted in this petition 9 is VACATED, and any pending motion for a stay of removal in 1 0 this petition is DISMISSED as moot. Any pending request for 1 1 oral argument in this petition is DENIED in accordance with 1 2 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 3 Circuit Local Rule 34(b). 1 4 FOR THE COURT: 1 5 Catherine O’Hagan Wolfe, Clerk 16 17 18