    08-3195-ag
    Hu v. Mukasey
                                                                                  BIA
                                                                            Abrams, IJ
                                                                          A099 534 847
                     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 15 th day of March, two thousand ten.

    PRESENT:
              DENNIS JACOBS,
                           Chief Judge,
              ROSEMARY S. POOLER,
              REENA RAGGI,
                           Circuit Judges.
    _______________________________________

    YAN YAN HU,
             Petitioner,

                    v.                                     08-3195-ag
                                                           NAC
    ERIC H. HOLDER JR., ATTORNEY
    GENERAL, *
               Respondent.
    _______________________________________
    FOR PETITIONER:        Henry Zhang, New York, New York.




                *
                Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
        Attorney General Eric H. Holder Jr., is automatically substituted
        for former Attorney General Michael B. Mukasey as respondent in
        this case.
FOR RESPONDENT:        Gregory G. Katsas, Assistant Attorney
                       General, William C. Peachey,
                       Assistant Director, Jem C. Sponzo,
                       Trial Attorney, Office of Immigration
                       Litigation, United States 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 DENIED.

    Yan Yan Hu, a native and citizen of the People’s

Republic of China, seeks review of a June 10, 2008 order of

the BIA, affirming the December 7, 2006 decision of

Immigration Judge (“IJ”) Steven R. Abrams, which denied her

application for asylum, withholding of removal, and relief

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

Hu, No. A99 534 847 (B.I.A. June 10, 2008), aff’g No. A99

534 847 (Immig. Ct. N.Y. City Dec. 7, 2006).    We assume the

parties’ familiarity with the underlying facts and

procedural history in this case.

    When the BIA affirms the IJ’s decision in some respects

but not others, this Court reviews the IJ’s decision as

modified by the BIA decision, i.e., minus the arguments for

denying relief rejected by the BIA.   See Xue Hong Yang v.

U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).     We

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review the agency’s factual findings under the substantial

evidence standard.     See 8 U.S.C. § 1252(b)(4)(B).   We will

“defer to an IJ’s credibility determination unless, from the

totality of the circumstances, it is plain that no

reasonable fact-finder could make such an adverse

credibility ruling.”     Xiu Xia Lin v. Mukasey, 534 F.3d 162,

167 (2d Cir. 2008).

    In its decision, the BIA noted two discrepancies that

the IJ did not rely upon in his adverse credibility

determination: (1) while Hu testified that her boyfriend

escorted her to and from the hospital, both her asylum

application and her boyfriend’s affidavit omitted this

detail; and (2) Hu testified inconsistently as to whether

family planning officials told her how far along she was in

her pregnancy.   Hu correctly contends that, in so doing, the

BIA impermissibly engaged in fact-finding in violation of 8

C.F.R. § 1003.1(d)(3).     See Xian Tuan Ye v. DHS, 446 F.3d

289, 296 (2d Cir. 2006) (citing 8 C.F.R. § 1003.1(d)(3)(i),

(iv)).   As a result, we will review only the IJ’s

credibility findings.

    We find that substantial evidence supports the agency’s

adverse credibility determination.     The agency properly


                                3
relied on Hu’s inconsistent accounts of where she lived

following her alleged forced abortion in 2008 —with her

boyfriend, as she testified, or with her parents, as

indicated on her asylum application.     Hu offered no

explanation for this discrepancy to either the IJ or in her

brief to this Court.   See 8 U.S.C. § 1158(b)(1)(B)(iii).     In

addition to this inconsistency, the agency also based its

finding of adverse credibility on Hu’s demeanor.     The IJ

specifically noted that Hu was evasive.     See Shu Wen Sun v.

BIA, 510 F.3d 377, 381 (2d Cir. 2007) (per curiam) (giving

“particular deference” to IJ’s finding that petitioner

testified “in a manner that suggested untruthfulness, rather

than nervousness or difficulty comprehending the

proceedings”); Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d

Cir. 2005) (particular deference given to the trier of

fact’s assessment of demeanor).

    Because substantial evidence supports the agency’s

adverse credibility determination, the agency’s denial of

Hu’s application for asylum, withholding of removal, and

relief under the CAT was not improper.     See Paul v.

Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (recognizing that

a withholding of removal claim must fail if petitioner is


                              4
unable to show the objective likelihood of persecution

needed to make out an asylum claim and the claims are based

on the same factual predicate).

    Finally, as the government notes, Hu has not challenged

the agency’s denial of CAT relief before this Court, and

therefore has waived any such challenge.   See Yueqing Zhang,

426 F.3d 540, 542 n.1, 546 n.7 (2d Cir. 2005); LoSacco v.

City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995)

(holding that an issue is abandoned when not raised in an

appellate brief).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, petitioner’s

pending motion for a stay of removal in this petition is

DISMISSED as moot.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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