09-2930-ag

Chen v. Holder BIA Roha n, IJ A094 915 837 

### 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 9 day of September, two thousand ten. th 5 6 PRESENT: 7 ROGER J. MINER, 8 PETER W. HALL, 9 DEBRA ANN LIVINGSTON, 10 C ircuit Judges . 11

_______________________________________ 12 13 YONG BIN CHEN, 14 Petitioner , 15 16 v. 09-2930-ag 17 18 ERIC H. HOLDER, JR., U.S. ATTORNEY 19 GENERAL, 20 Respondent . 21

______________________________________ 22 23 FOR PETITIONER: Waisim M. Cheung, New York, New 24 York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Francis W. Fraser, Senior 28 Litigation Counsel; W. Daniel Shieh, 29 Trial Attorney, Office of 30 Immigration Litigation, Washington 31 D.C.2 1 UPON DUE CONSIDERATION o f t h is petition for review of a 2 Board of Immigration Appeals (“BIA”) decisio n, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 4 DENIED. 5 Petitioner Yong Bin Chen, a native and citizen of China, 6 seeks review of the June 11, 2009 order of the BIA affirming 7 the September 26, 2007 d ecision of Immigration Judge (“IJ”) 8 Patricia A. Rohan denying his application for asylum, 9 withhold i n g of removal, and relief under the Convention 1 0 A g a i n s t T o r t u r e (“CAT”). In re Yong Bin Chen , No. A094 915 1 1 837 (B.I.A. June 11, 2 0 0 9), aff’gNo. A094 915 837 (Immigr. 1 2 Ct. N.Y. City Sept. 26, 2007). We assume the parties’ 1 3 familiarity with the underlying facts and procedural history 1 4 in this case. 1 5 Under the circumstances of this case, we review both 1 6 the IJ’s and the BIA’s decisions. See Yun-Zui Guan v. 17 Gonzales , 432 F.3d 391, 394 (2d Cir. 2005). The applicable 1 8 standards of review are well-established. See 8 U.S.C. 1 9 § 1252(b)(4)(B); Yanqin Weng v. Holder , 562 F.3d 510, 513 2 0 (2d Cir. 2009). 2 1 Substantial evidence supports the agency’s adverse 2 2 credibility determination. As a preliminary matter, Chen3 1 does not challenge the IJ’s findings that: (1) he failed to 2 offer reasonably available corroborating evidence; and (2) 3 he provided inconsistent testimony regarding whether he was 4 baptized at an official “patriotic” church. Rather, Chen 5 incorrectly argues that “the BIA decision merely cited [his] 6 lack of detailed reference [to] the two arrest/detention 7 incidents in his asylum statement as the only basis for its 8 adverse credibility determination.” Pet’r’s Br. 6. To the 9 contrary, the BIA “adopt[ed] and affirm[ed]” the IJ’s 1 0 decision, noting Chen’s “changing responses when questioned 1 1 about implausibilities” and “lack of reasonably available 1 2 corroborating evidence.” Chen has therefore waived any 1 3 challenge to these findings, and they stand as valid bases 1 4 for the agency’s adverse credibility determination. See 15 Shunfu Li v. Mukasey , 529 F.3d 141, 146 (2d Cir. 2008). 1 6 With respect to the finding Chen does challenge, the 1 7 BIA reasonably found that his omission of his 2004 and 2006 1 8 detentions from his asylum application undermined his 1 9 credibility. This omission was significant because: (1) the 2 0 detentions were the central basis for his claim of past 2 1 persecution, rather than details to be fleshed out during 2 2 his testimony; and (2) he prepared his application with the4 1 assistance of an attorney. Under the REAL ID Act, “an IJ 2 may rely on anyinconsistency or omission in making an 3 adverse credibility determination as long as the ‘totality 4 of the circumstances’ establishes that the asylum applicant 5 is not credible.” Xiu Xia Lin v. Mukasey , 534 F.3d 162, 167 6 (2d Cir. 2008) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). 7 Thus, Chen’s omission of his detentions, one of which 8 allegedly lasted for ten days with minimal food, was a 9 proper basis for the agency’s adverse credibility 1 0 determination. Furthermore, the BIA did not err in 1 1 rejecting Chen’s explanation that he did not include the 1 2 detentions in his asylum application because he planned to 1 3 supplement the application in light of the fact that he 1 4 included a supplemental statement with the application at 1 5 the time of filing. See Majidi v. Gonzales , 430 F.3d 77, 1 6 80-81 (2d Cir. 2005) (the agency need not credit an 1 7 applicant’s explanations for inconsistent testimony unless 1 8 those explanations would compel a reasonable fact-finder to 1 9 do so). 2 0 Ultimately, the agency’s credibility determination was 2 1 supported by substantial evidence. See8 U.S.C. 2 2 § 1252(b)(4)(B); Xiu Xia Lin , 534 F.3d at 167. Therefore,5 1 it did not err in denying Chen’s application for asylum and 2 withholding of removal. See Paul v. Gonzales , 444 F.3d 148, 3 156 (2d Cir. 2006). Chen does not challenge the agency’s 4 denial of CAT relief. 5 For the foregoing reasons, the petition for review is 6 DENIED. As we have completed our review, any stay of 7 removal that the Court previously granted in this petition 8 is VACATED, and any pending motion for a stay of removal in 9 this petition is DISMISSED as moot. Any pending request for 1 0 oral argument in this petition is DENIED in accordance with 1 1 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 2 Circuit Local Rule 34.1(b). 1 3 FOR THE COURT: 1 4 Catherine O’Hagan Wolfe, Clerk 15 16