09-3658-ag

Feng v. Holder

BIA

Abrams, IJ

A094 787 245

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.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 3 day of June, two thousand ten. rd

PRESENT:

JON O. NEWMAN,

ROBERT A. KATZMANN,

PETER W. HALL,

 Circuit Judges. 

_______________________________________

DONG XING FENG,

Petitioner, 

 v. 09-3658-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

______________________________________

FOR PETITIONER: Lewis Hu, New York, N.Y.
2

FOR RESPONDENT: Tony West, Assistant Attorney General,

Civil Division; Blair T. O’Connor,

Assistant Director, Office of Immigration

Litigation; Rachel Browning, Trial

Attorney, Office of Immigration

Litigation, Civil Division, U.S.

Department of Justice, Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner, Dong Xing Feng, a native and citizen of the

People’s Republic of China, seeks review of a July 29, 2009

order of the BIA affirming the January 11, 2008 decision of

Immigration Judge (“IJ”) Steven R. Abrams denying

petitioner’s application for asylum, withholding of removal,

and relief under the Convention Against Torture (“CAT”). In

re Dong Xing Feng, No. A 094 787 245 (B.I.A. July 29, 2009),

aff’g No. A 094 787 245 (Immig. Ct. N.Y. City Jan. 11,

2008). We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

Under the circumstances of this case, we consider both

the IJ’s and the BIA’s opinions. See Jigme Wangchuck v.

Dept’t of Homeland Security, 448 F.3d 524, 528 (2d Cir.

2006). The applicable standards of review are wellestablished. See Corovic v. Mukasey, 519 F.3d 90, 95 (2d

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

Cir. 2008). 

Substantial evidence supports the IJ’s adverse

credibility determination. In evaluating Feng’s

credibility, the IJ found that: (1) his testimony regarding

his practice of Falun Gong was contradicted by his witness’s

testimony and his documentary evidence in several respects;

(2) it was implausible that his parents refused, for no

reason, to send him a receipt for a fine they were allegedly

forced to pay because of his Falun Gong activities; and

(3) he failed to provide any corroboration for his claim

that his name and picture were published in a Chinese

newspaper identifying him as a Falun Gong practitioner. 

Feng does not challenge these findings, which accordingly

stand as valid bases for the IJ’s credibility determination. 
3

See Shunfu Li v. Mukasey, 529 F.3d 141, 147-48 (2d Cir.

2008). 

The IJ further found that Feng testified inconsistently

regarding the police raids that allegedly resulted in his

detention for practicing Falun Gong. Indeed, although he

testified that the raids occurred on Tuesdays, the dates he

provided for the raids were both Mondays. Despite Feng’s

argument that this discrepancy was an innocent mistake

caused by his nervousness at his hearing, a reasonable

factfinder would not have been compelled to credit that

explanation. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

Cir. 2005). Moreover, the IJ was entitled to rely on any

discrepancy, no matter how minor, so long as the totality of

the circumstances indicated that Feng was not credible. See

8 U.S.C. § 1158(b)(1)(B)(iii). 

In addition to challenging the IJ’s adverse credibility

determination, Feng argues that the IJ: (1) erred in finding

that he incorrectly performed one of the Falun Gong

movements; and (2) violated his due process rights by

declining to order a continuance to allow him an opportunity

to submit additional evidence. However, as Feng failed to

raise these arguments before the BIA, we decline to address

them. See Lin Zhong v. U.S. Dept of Justice, 480 F.3d 104,

119-20 (2d Cir. 2007). 

For the foregoing reasons, the petition for review is

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

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

Any pending request for oral argument in this petition is

DENIED in accordance with Federal Rule of Appellate

Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk