         09-0236-ag
         Chen v. Holder
                                                                                        BIA
                                                                                    Lamb, IJ
                                                                                A079 399 694
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 21 st day of December, two thousand                nine.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                JOSÉ A. CABRANES,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11       _________________________________________
12
13       QUAN LUO CHEN, a.k.a. CHUAN LUO CHEN,
14                Petitioner,
15
16                        v.                                    09-0236-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., 1 UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________


                  1
                Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr., is
         automatically substituted for former Acting Attorney General
         Mark R. Filip as respondent in this case.
 1   FOR PETITIONER:        Feng Li, Law Office of Fengling Liu
 2                          New York, New York.
 3
 4   FOR RESPONDENT:        Tony West, Assistant Attorney
 5                          General, Civil Division; Linda S.
 6                          Wernery, Assistant Director; Lindsay
 7                          B. Glauner, Trial Attorney, United
 8                          States Department of Justice,
 9                          Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

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

13   ORDERED, ADJUDGED, AND DECREED, that the petition for review

14   is DENIED.

15       Quan Luo Chen, a native and citizen of the People’s

16   Republic of China, seeks review of a December 19, 2008 order

17   of the BIA, affirming the April 24, 2007 decision of

18   Immigration Judge (“IJ”) Elizabeth A. Lamb, who denied

19   Chen’s application for asylum, withholding of removal, and

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

21   Quan Luo Chen, No. A079 399 694 (B.I.A. Dec. 19, 2008),

22   aff’g No. A079 399 694 (Immig. Ct. N.Y. City Apr. 24, 2007).

23   We assume the parties’ familiarity with the underlying facts

24   and procedural history in this case.

25       We review the IJ’s decision as supplemented by the BIA.

26   See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

27   The applicable standards of review are well established.



                                  2
1    See 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122,

2    126-27 (2d Cir. 2007); Salimatou Bah v. Mukasey, 529 F.3d

3    99, 110-11 (2d Cir. 2008).

4        Here, substantial evidence supports the IJ’s adverse

5    credibility determination, which was based on: (1) Chen’s

6    inconsistent testimony as to whether he had proof of his

7    wife’s abortion; (2) Chen’s evasive demeanor; (3) a response

8    from Chinese officials stating that Chen’s wife’s abortion

9    certificate is fraudulent; and (4) Chen’s failure to submit

10   any evidence rebutting that response.    Because Chen does not

11   challenge the IJ’s reliance upon his demeanor and his

12   failure to provide rebuttal evidence, those findings stand

13   as valid bases for the IJ’s adverse credibility

14   determination.   See Shunfu Li v. Mukasey, 529 F.3d 141, 146-

15   47 (2d Cir. 2008).    Although Chen asserts that his being

16   upset and nervous explained his inconsistent testimony, no

17   reasonable factfinder would have been compelled to credit

18   that explanation.    See Majidi v. Gonzales, 430 F.3d 77, 81

19   (2d Cir. 2005); see also Yun-Zui Guan v. Gonzales, 432 F.3d

20   391, 397 n.6, 399 n.8 (2d Cir. 2005).    Finally, we have

21   found that a response from the alleged persecuting

22   government “may be of limited probative value” because the



                                    3
1    government may have “ulterior motive[s].”    See Zhen Nan Lin

2    v. Dep’t of Justice, 459 F.3d 255, 266 (2d Cir. 2006).

3    However, given the other discrepancies in the record, the IJ

4    was entitled to give weight to the Chinese government’s

5    statement that the abortion certificate is fraudulent,

6    particularly because Chen failed to provide rebuttal

7    evidence.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

8    F.3d 315, 342 (2d Cir. 2006) (finding that the weight

9    afforded to the applicant’s evidence in immigration

10   proceedings lies largely within the discretion of the

11   agency).

12        Because substantial evidence supports the IJ’s adverse

13   credibility determination, see Dong Gao, 482 F.3d at 126,

14   Chen’s claims for asylum, withholding of removal, and CAT

15   relief each fail because the only evidence that he was

16   likely to be persecuted or tortured depended upon his

17   credibility. 2   See Paul v. Gonzales, 444 F.3d 148, 156 (2d

18   Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

19   520, 523 (2d Cir. 2005).



          2
           We reject the government’s argument that Chen waived
     any challenge to the agency’s denial of CAT relief. In his
     brief, Chen notes that the IJ denied CAT relief based on her
     adverse credibility determination, and challenged that
     determination.

                                    4
1        For the foregoing reasons, the petition for review is

2    DENIED.   As we have completed our review, the temporary stay

3    of removal that the Court previously granted in this

4    petition is VACATED.   To the extent petitioner requests a

5    further stay, that request is denied as moot.

 6                               FOR THE COURT:
 7                               Catherine O’Hagan Wolfe, Clerk
 8
 9
10                               By:___________________________




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