    09-0003-ag
    Chen v. Holder
                                                                                   BIA
                                                                             Abrams, IJ
                                                                          A098-772-181
                      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 16 th day of February, two thousand ten.

    PRESENT:
             RALPH K. WINTER,
             GUIDO CALABRESI,
             PETER W. HALL,
                     Circuit Judges.
    ______________________________________

    XIONG CHEN,
             Petitioner,

                     v.                                    09-0003-ag
                                                           NAC
    ERIC H. HOLDER, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:               Eric Zheng, New York, New York.
    FOR RESPONDENT:               Michael F. Hertz, Acting Assistant
                                  Attorney General; Carol Federighi,
                                  Senior Litigation Counsel, Office of
                                  Immigration Litigation; Mona Maria
                                  Yousif, 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 DISMISSED, in part, and DENIED, in part.

     Petitioner, Xiong Chen, a native and citizen of the
People’s Republic of China, seeks review of the December 8,
2008 order of the BIA affirming the June 8, 2007 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 Xiong Chen, No. A 098 772 181 (B.I.A. Dec. 8, 2008),
aff’g No. A 098 772 181 (Immig. Ct. N.Y. City June 8, 2007).
We assume the parties’ familiarity with the underlying facts
and procedural history of the case.

     When the BIA adopts the decision of the IJ and
supplements the IJ’s decision, this Court reviews the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). This Court
reviews the agency’s factual findings, including adverse
credibility findings, under the substantial evidence
standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.
Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).

     As an initial matter, we lack jurisdiction to address
Chen’s challenge to the IJ’s denial of his claims for
withholding of removal and CAT relief because he failed to
exhaust any challenge to the denial of that relief before
the BIA. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462
F.3d 113, 119 (2d Cir. 2006). As the government argues,
Chen also failed to exhaust any claim before the BIA that
the fines imposed upon him and the psychological harm he
suffered as a result of his wife’s allegedly forced
sterilization constituted persecution. While this failure
to exhaust before the agency arguments raised before this
Court is not jurisdictional, Lin Zhong v. U.S. Dep’t of
Justice, 480 F.3d 104, 119-20 (2d Cir. 2007), this




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judicially imposed exhaustion requirement is mandatory. We
decline to consider this unexhausted issue. * See id. at 124.

     Substantial evidence supports the BIA’s affirmance of
the IJ’s adverse credibility determination, which was based
in part on inconsistencies in the record and the IJ’s
assessment of Chen’s demeanor. See Corovic, 519 F.3d at 95.
Chen argues that the BIA erred in affirming those findings
because the BIA noted their existence but did not
specifically discuss them. That argument lacks merit
because we review the IJ’s findings where, as here, the BIA
adopts them. See Yan Chen, 417 F.3d at 271. The IJ
identified two inconsistencies within Chen’s testimony
concerning when his wife was forcibly sterilized. The IJ
also found that Chen’s testimony was evasive at specific
points during his merits hearing. This Court has emphasized
that because demeanor is “virtually always evaluated
subjectively and intuitively,” an IJ’s assessment of an
applicant’s demeanor merits “great deference.” See Tu Lin
v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006). We accord
such deference here.

     It was also reasonable for the IJ to find implausible
Chen’s testimony that family planning authorities sought his
sterilization even though his wife had already been
sterilized. Although Chen argues that this finding was
impermissibly speculative because record evidence indicates
that the Chinese government uses sterilization as a form of
punishment, he points to no record evidence supporting his
assertion. Although Chen correctly asserts that the
Department of State’s 2000 Country Report on Human Rights
Practices for China states that officials are under pressure
to show declining birth rates, that report does not indicate


       *
        Chen also asserts that the BIA erred in finding that
  the IJ’s adverse credibility determination was dispositive
  of his entire appeal because the IJ specifically found
  that he demonstrated that he was subject to a substantial
  fine for his violation of the family planning policy.
  However, because Chen only raised a challenge to the IJ’s
  adverse credibility determination before the BIA, the BIA
  did not err in limiting its decision to the sole issue
  raised before it.

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that family planning officials would sterilize both spouses
in attempt to meet such targets. Chen cites to a transcript
of a hearing before the Committee on International
Relations, a document that he did not submit before the
agency. We decline to address this document because we will
not remand for the BIA to consider evidence that was not
included in the administrative record. See 8 U.S.C.
§ 1252(b)(4)(A); Xiao Xing Ni v. Gonzales, 494 F.3d 260,
269-70 (2d Cir. 2007). Moreover, the IJ adequately
explained what he found implausible about Chen’s testimony
and created a sufficient record to support that finding.
See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007)
(finding that where “the reasons for [the IJ’s] incredulity
are evident,” the implausibility finding is supported by
substantial evidence because it is tethered to the record);
cf. Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005)
(explaining that this Court requires only “a certain minimum
level of analysis from the IJ and BIA opinions denying
asylum” in order for judicial review to be meaningful).

     Having found that Chen’s testimony was not otherwise
credible, the agency properly found that Chen’s
corroborating evidence could not cure his testimonial
deficiencies. See Biao Yang v. Gonzales, 496 F.3d 268, 273
(2d Cir. 2007) (per curiam).

     Because substantial evidence supports the IJ’s adverse
credibility determination, the agency did not err in denying
Chen’s application for asylum. 8 U.S.C. § 1101(a)(42); see
also Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

     For the foregoing reasons, the petition for review is
DISMISSED, in part, and DENIED, in part. 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(b).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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