         09-2930-ag
         Chen v. Holder
                                                                                       BIA
                                                                                  Rohan, IJ
                                                                               A094 915 837
                           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 9 th day of September, two thousand               ten. 
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                PETER W. HALL,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit 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.
1          UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, 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 decision of Immigration Judge (“IJ”)

8    Patricia     A.    Rohan       denying      his     application      for    asylum,

9    withholding       of   removal,       and       relief    under   the   Convention

10   Against Torture (“CAT”).               In re Yong Bin Chen, No.  A094 915

11   837 (B.I.A. June 11, 2009), aff’g No.  A094 915 837 (Immigr. 

12   Ct.    N.Y.   City      Sept.    26,   2007).          We    assume   the    parties’

13   familiarity with the underlying facts and procedural history

14   in this case. 

15         Under the circumstances of this case, we review both

16   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

18   standards of review are well-established.                      See 8 U.S.C.

19   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

20   (2d Cir.  2009). 

21         Substantial evidence supports the agency’s adverse

22   credibility determination.                As a preliminary matter, Chen


                                                 2
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

10   decision, noting Chen’s “changing responses when questioned

11   about implausibilities” and “lack of reasonably available

12   corroborating evidence.”    Chen has therefore waived any

13   challenge to these findings, and they stand as valid bases

14   for the agency’s adverse credibility determination.      See

15   Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.  2008). 

16       With respect to the finding Chen does challenge, the

17   BIA reasonably found that his omission of his 2004 and 2006

18   detentions from his asylum application undermined his

19   credibility.    This omission was significant because: (1) the

20   detentions were the central basis for his claim of past

21   persecution, rather than details to be fleshed out during

22   his testimony; and (2) he prepared his application with the


                                   3
1    assistance of an attorney.      Under the REAL ID Act, “an IJ

2    may rely on any inconsistency 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

10   determination.    Furthermore, the BIA did not err in

11   rejecting Chen’s explanation that he did not include the

12   detentions in his asylum application because he planned to

13   supplement the application in light of the fact that he

14   included a supplemental statement with the application at

15   the time of filing.      See Majidi v. Gonzales, 430 F.3d 77,

16   80-81 (2d Cir.  2005) (the agency need not credit an

17   applicant’s explanations for inconsistent testimony unless

18   those explanations would compel a reasonable fact-finder to

19   do so). 

20       Ultimately, the agency’s credibility determination was

21   supported by substantial evidence.      See 8 U.S.C.

22   § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 167.         Therefore,


                                     4
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

10   oral argument in this petition is DENIED in accordance with

11   Federal Rule of Appellate Procedure 34(a)(2), and Second

12   Circuit Local Rule 34.1(b). 

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16




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