         09-2266-ag
         Qiu v. Holder
                                                                                        BIA
                                                                                 Mulligan, IJ
                                                                               A 093 397 343
                           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 8 th day of February, two thousand ten.
 5
 6       PRESENT:
 7                       JOHN M. WALKER, JR.,
 8                       BARRINGTON D. PARKER,
 9                       RICHARD C. WESLEY,
10                                Circuit Judges.
11
12       _______________________________________
13
14       REN CHANG QIU,
15                Petitioner,
16
17                        v.                                    09-2266-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., U.S. ATTORNEY
20       GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Henry Zhang, New York, New York.
25
26       FOR RESPONDENT:               Benton J. Campbell, United States
27                                     Attorney; Margaret M. Kolbe,
28                                     Assistant United States Attorney;
29                                     Dione M. Enea, Special Assistant
30                                     United States Attorney, Brooklyn,
31                                     New York.
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

4    is DENIED.

5        Petitioner Ren Chang Qiu, a native and citizen of

6    China, seeks review of the April 30, 2009 order of the BIA

7    affirming the November 1, 2007 decision of Immigration Judge

8    (“IJ”) Thomas J. Mulligan denying his application for

9    asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).   In re Ren Chang Qiu,

11   No. A 093 397 343 (B.I.A. April 30, 2009), aff’g No. A 093

12   397 343 (Immig. Ct. N.Y. City Nov. 1, 2007).    We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       When the BIA agrees with the IJ’s conclusion that a

16   petitioner is not credible and, without rejecting any of the

17   IJ’s grounds for decision, emphasizes particular aspects of

18   that decision, we review both the BIA’s and IJ’s opinions --

19   or more precisely, we review the IJ’s decision including the

20   portions not explicitly discussed by the BIA.    Yun-Zui Guan

21   v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) We review the

22   agency’s factual findings, including adverse credibility

23   determinations, under the substantial evidence standard.


                                  2
1    8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519

2    F.3d 90, 95 (2d Cir. 2008).    We review de novo questions of

3    law and the application of law to undisputed fact.    See

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

5         As an initial matter, in his brief before this Court,

6    Qiu does not challenge the IJ’s findings that:(1) although

7    he testified and stated in his revised asylum application

8    that, in August 2004, he was beaten, detained, and arrested,

9    and that his wife had a second IUD forcibly inserted, he

10   made no such allegations in his original asylum application;

11   and (2) the “striking similarities” between statements from

12   Qiu’s wife and father undermined his credibility.    Thus, he

13   has waived any challenge to those findings, Yueqing Zhang v.

14   Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005), and

15   they stand as valid bases for the IJ’s adverse credibility

16   determination. 1   See Shunfu Li v. Mukasey, 529 F.3d 141,

17   146-147 (2d Cir. 2008).



            1
             Beyond waiving any challenge to these findings,
       Attorney Henry Zhang includes large portions excerpted
       from an unrelated brief. For example, Qiu argues in his
       brief that the BIA erred by failing to consider the
       economic harm he suffered, however economic harm was not
       an issue in this case. Furthermore, the brief frequently
       refers to the petitioner as “Mr. Ou,” rather than Mr.
       Qiu, and recounts facts irrelevant to Qiu’s case.
       Briefing of this sort is unacceptable, and represents a
       continuation of the trend of poor quality briefing about
       which Mr. Zhang has previously been warned.

                                    3
1        Rather than challenge the key findings described above,

2    Qiu disputes the IJ’s assessment of his demeanor.     In his

3    decision, the IJ found that Qiu “looked embarrassed when he

4    answered questions, and he appeared concerned that he was

5    making a mistake with his answer.”   The IJ also observed

6    that, throughout his testimony, Qiu was “wringing his hands,

7    picking at his hands, and was extremely nervous.”     In

8    addition, the IJ noted that when Qiu was asked about his

9    wife’s persecution, he was “very eager to talk about his own

10   purported problems, rather than listening to the question

11   that was presented.”   Qiu argues that the IJ did not make

12   specific demeanor findings on the record, making it

13   impossible for this Court to determine whether “these

14   activities occurred at a critical point in the testimony.”

15   However, the record belies this argument insofar as the IJ

16   noted Qiu’s difficulty responding to questions about his

17   wife’s alleged persecution.   Qiu also argues that he tended

18   to speak about his own problems because he was nervous

19   appearing before the court, but, although all aliens

20   appearing at their removal hearing are likely to be nervous,

21   no reasonable fact-finder would be compelled to credit this

22   explanation.   See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167

23   (2d Cir. 2008).   In any event, we generally defer to an IJ’s

24   demeanor findings and find no reason not to do so here.        See


                                   4
1    Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005) (IJ

2    “is in the best position to discern, often at a glance,

3    whether . . . a witness who hesitated in a response was

4    nevertheless attempting truthfully to recount what he

5    recalled of key events or struggling to remember the lines

6    of a carefully crafted ‘script’; and whether inconsistent

7    responses are the product of innocent error or intentional

8    falsehood”); see also 8 U.S.C. § 1158(b)(1)(B)(iii).

9        Ultimately, the IJ’s credibility determination was

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

11   § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 167.    Therefore,

12   the IJ did not err in denying Qiu’s application for asylum,

13   withholding of removal, and CAT relief because the only

14   evidence that Qiu would be persecuted or tortured depended

15   on his credibility.   See Paul v. Gonzales, 444 F.3d 148, 156

16   (2d Cir. 2006).

17       For the foregoing reasons, the petition for review is

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

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

20   Any pending request for oral argument in this petition is

21   DENIED in accordance with Federal Rule of Appellate

22   Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
23
24                               FOR THE COURT:
25                               Catherine O’Hagan Wolfe, Clerk
26
27
28

                                   5
