         09-2154-ag
         Dong v. Holder
                                                                                        BIA
                                                                               Balasquide, IJ
                                                                               A 099 930 780
                           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 21 st day of April, two thousand nine.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       _______________________________________
12
13       ZHIHUI DONG,
14                Petitioner,
15
16                        v.                                    09-2154-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Yan Wang, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Jennifer L. Lightbody,
27                                     Senior Litigation Counsel; John S.
28                                     Hogan, Senior Litigation Counsel,
29                                     Office of Immigration Litigation,
30                                     Washington 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

4    is DENIED.

5        Petitioner Zhihui Dong, a native and citizen of China,

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

7    affirming the September 26, 2007 decision of Immigration

8    Judge (“IJ”) Javier E. Balasquide denying his application

9    for asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).   In re Zhihui Dong, No.

11   A 099 930 780 (B.I.A. April 30, 2009), aff’g No. A 099 930

12   780 (Immig. Ct. N.Y. City Sept. 26, 2007).   We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we consider both

16   the IJ’s and BIA’s opinions “for the sake of completeness.”

17   Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008).    The

18   applicable standards of review are well-established.    See

19   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

20   510, 513 (2d Cir. 2009).

21       As a preliminary matter, Dong does not challenge the

22   IJ’s findings that: (1) he provided inconsistent


                                  2
1    explanations regarding his wife’s failure to mention his

2    detention or hospitalization in her December 2006 affidavit;

3    (2) contrary to Dong’s assertion that he did not mention his

4    detention and hospitalization in his asylum application

5    because he did not have documents to support the claim, such

6    documents were in the record; and (3) medical records that

7    Dong submitted indicating that he was beaten on the morning

8    of July 7, 2003 were inconsistent with his testimony that he

9    was in fact beaten more than ten days earlier.     Thus, he has

10   waived any challenge to those findings, Yueqing Zhang v.

11   Gonzales, 426 F.3d 540, 541 n.1, 546 n.7 (2d Cir. 2005), and

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

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

14   47 (2d Cir. 2008).

15       With regard to the findings that Dong does challenge,

16   each was proper.     Dong argues that his failure to mention

17   his beating, detention, or hospitalization in his original

18   asylum application does not support an adverse credibility

19   finding because “when he first applied, his wife’s forced

20   abortion by itself served as a basis for him to obtain

21   asylum, but then a change in the Circuit case law made it

22   necessary to discuss his own persecution.”     However, as the


                                     3
1    IJ noted, the application specifically asked whether Dong

2    was arrested or detained while he lived in China, and Dong

3    answered “no.”   Therefore, even if Dong did not believe that

4    he was required to establish that he was personally

5    mistreated in order to be eligible for relief, the IJ did

6    not err in finding that he “provided false information in

7    his original application for political asylum.”      See Cheng

8    Tong Wang v. Gonzales, 449 F.3d 451, 453 (2d Cir. 2006).

9    Furthermore, although Dong argues that any inconsistency

10   between his testimony and the supporting documentation

11   regarding his wife’s payment of a fine to family planning

12   authorities was a “minor and insignificant point,” under the

13   REAL ID Act, “an IJ may rely on any inconsistency or

14   omission in making an adverse credibility determination as

15   long as the ‘totality of the circumstances’ establishes that

16   the asylum applicant is not credible.”     Xiu Xia Lin v.

17   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam)

18   (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)).

19       Ultimately, the IJ’s credibility determination was

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

21   § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 165.      Therefore,

22   the IJ did not err in denying Dong’s application for asylum,


                                   4
1    withholding of removal, and CAT relief because the only

2    evidence that Dong would be persecuted or tortured depended

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

4    (2d Cir. 2006).

5        For the foregoing reasons, the petition for review is

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

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

8    Any pending request for oral argument in this petition is

9    DENIED in accordance with Federal Rule of Appellate

10   Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
11
12                               FOR THE COURT:
13                               Catherine O’Hagan Wolfe, Clerk
14
15
16




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