    10-1481
    Chen v. Holder
                                                                                  BIA
                                                                               Page, IJ
                                                                          A078 410 566
                          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 Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 20th day of May, two thousand thirteen.
    PRESENT:
             ROSEMARY S. POOLER,
             RICHARD C. WESLEY,
             PETER W. HALL,
                   Circuit Judges.
    _______________________________________

    SHAO QIONG CHEN,
             Petitioner,

                     v.                                    10-1481
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:                Gary J. Yerman, New York, New York.

    FOR RESPONDENT:                Tony West, Assistant Attorney
                                   General; Richard M. Evans, Assistant
                                   Director; Andrew Oliveira, Trial
                                   Attorney, Office of Immigration
                                   Litigation, Civil Division, United
                                   States Department of Justice,
                                   Washington, D.C.
     UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DISMISSED in part and DENIED in part.

     Petitioner Shao Qiong Chen, a native and citizen of the
People’s Republic of China, seeks review of a March 31,
2010, order of the BIA, affirming the June 18, 2008,
decision of Immigration Judge (“IJ”) Alan Page,
pretermitting her asylum application and denying her
application for withholding of removal and relief under the
Convention Against Torture (“CAT”). In re Shao Qiong Chen,
No. A078 410 566 (B.I.A. Mar. 31, 2010), aff’g No. A078 410
566 (Immig. Ct. N.Y. City June 18, 2008). We assume the
parties’ familiarity with the underlying facts and
procedural history of the case.

     Under the circumstances of this case, we have reviewed
the IJ’s decision. See Yun-Zui Guan v. Gonzales, 432 F.3d
391, 394 (2d Cir. 2005). The applicable standards of review
are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

I.   Asylum

     Title 8, Section 1158(a)(3) of the United States Code
provides that no court shall have jurisdiction to review the
agency’s finding that an asylum application was untimely
under 8 U.S.C. § 1158(a)(2)(B), or its finding that neither
changed nor extraordinary circumstances excused the
untimeliness under 8 U.S.C. § 1158(a)(2)(D).
Notwithstanding that provision, however, we retain
jurisdiction to review constitutional claims and questions
of law. See 8 U.S.C. § 1252(a)(2)(D). Chen argues that the
IJ erred in finding that the birth of her children did not
establish extraordinary circumstances excusing the untimely
filing of her asylum application. Because that argument
raises neither a constitutional claim nor a question of law,
see Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329
(2d Cir. 2006), we lack jurisdiction to review the agency’s
pretermission of Chen’s asylum application, see 8 U.S.C.
§ 1252(a)(2)(D), and dismiss the petition for review with
respect to Chen’s challenges to the denial of asylum.


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II. Withholding of Removal and CAT Relief

    A.   Adverse Credibility Determination

     As an initial matter, contrary to Chen’s assertion, it
is clear that the IJ applied the correct standard of review
because he specifically stated that he was not applying the
law as amended by the REAL ID Act and referred to
appropriate case law. Furthermore, even in pre-REAL ID Act
cases, such as this one, the IJ is permitted to consider
whether the testimony is “generally consistent.” Diallo v.
INS, 232 F.3d 279, 288 (2d Cir. 2000)

     Substantial evidence supports the IJ’s adverse
credibility determination. As the IJ found: (1) although
Chen testified that, in 2000, Chinese authorities searched
for her at her parents home and threatened her parents,
these details were omitted from her asylum application and
her mother’s letter; (2) although Chen testified that she
stopped working in January 2000 and went into hiding in
October 2000, she stated in her asylum application that she
lived at home and continued to work until November 2000;
(3) although Chen initially testified that the cousin who
warned her about her pending arrest was a telephone operator
for the village committee, she later testified that he was a
messenger for the village committee, but upon further
questioning, she again described him as a telephone
operator; and (4) although Chen initially testified that she
learned about Falun Gong exercises from books she purchased
in the United States, she then testified that she purchased
the books in China, but upon further questioning, she again
testified that she purchased the books in the United States.
Although minor and isolated discrepancies may be
insufficient to support an adverse credibility finding, see
Diallo, 232 F.3d at 288, the discrepancies here relate to
events at the heart of Chen’s claim—whether Chinese
authorities were looking for her, how she knew to go into
hiding, and how she learned about Falun Gong. Moreover, the
IJ reasonably relied on the cumulative effect of these
inconsistencies as the basis for questioning her
credibility. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d
Cir. 2006) (emphasizing that “even where an IJ relies on

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discrepancies or lacunae that, if taken separately, concern
matters collateral or ancillary to the claim, . . . the
cumulative effect may nevertheless be deemed consequential
by the fact-finder”)(internal quotation marks and citation
omitted); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166
n.3 (2d Cir. 2008) (noting that inconsistencies and
omissions are “functionally equivalent”).

     Furthermore, as the record supports the IJ’s findings
that Chen provided conflicting testimony, the IJ was not
required to credit Chen’s explanations that: (1) her
affidavit and her mother’s letter did not mention the
threats by government officials because she forgot; (2) the
inconsistency regarding when she stopped working and went
into hiding was the result of a mistake; (3) the
inconsistency regarding whether her cousin was a telephone
operator or a messenger was only a matter of semantics; and
(4) the inconsistency regarding whether her Falun Gong books
were purchased in China or the United States was the result
of a mistake. See Majidi v. Gonzales, 430 F.3d 77, 80-81
(2d Cir. 2005) (holding that “an IJ may rely on an
inconsistency in an asylum applicant’s account to find that
applicant not credible - provided the inconsistency affords
‘substantial evidence’ in support of the adverse credibility
finding - without soliciting from the applicant an
explanation for the inconsistency.”).

     Chen also challenges the IJ’s reliance on her
alternating use of the terms “labor camp” and “jail,”
inconsistent statements as to how she responded to official
questioning regarding her Falun Gong practice, lack of
knowledge as to how officials discovered that she wrote a
letter protesting the treatment of Falun Gong practitioners,
and ability to leave China using her own passport. Even
assuming that these findings were erroneous, remand would be
futile in this case because the IJ did not rely
disproportionately on these findings to find Chen not
credible, and the IJ’s broader credibility determination is
amply supported by the record. See Xiao Ji Chen, 471 F.3d
at 335. Because the IJ’s adverse credibility determination
was based on the cumulative effect of multiple
inconsistencies, it can be confidently predicted based on
the IJ’s non-erroneous findings that the agency would reach
the same credibility determination absent any errors. See

                             4
Xiu Xia Lin, 534 F.3d at 165-66. Because substantial
evidence supports the agency’s adverse credibility
determination, see Zhou Yun Zhang v. U.S. INS, 386 F.3d 66,
73 (2d Cir. 2004), overruled on other grounds by Shi Liang
Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007),
the agency’s denial of Chen’s withholding of removal and CAT
claims were proper to the extent they were both based on her
practice of Falun Gong. See Paul v. Gonzales, 444 F.3d 148,
156 (2d Cir. 2006).

    B.   Family Planning Claim

     Substantial evidence also supports the agency’s
determination that Chen failed to establish a well-founded
fear of persecution on account of the birth of her second
child in the United States. See Jian Hui Shao v. Mukasey,
546 F.3d 138, 163 (2d Cir. 2008) (finding that substantial
evidence supported the BIA’s determination that petitioner
failed to demonstrate a reasonable possibility that he would
face forced sterilization in China based on fathering two
children). As the BIA found, the State Department’s 2007
Profile of Asylum Claims indicated that there have not been
any known cases in which individuals were forced to have an
abortion or be forcibly sterilized upon their return from
the United States. Because the agency pointed to evidence
indicating that Chen’s fear of forced sterilization was not
objectively reasonable and because Chen has not identified
any evidence in support her position, the agency reasonably
denied her application for withholding of removal based on
her claimed fear of forced sterilization for having two
children. See id. at 169-72. Because Chen was unable to
show the objective likelihood of persecution needed to make
out a withholding of removal claim, the BIA also reasonably
denied CAT relief, as both claims rested on the same factual
predicate. See Paul, 444 F.3d at 156.

     For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part. As we have completed
our review, any stay of removal that the Court previously
granted in this petition is VACATED, and any pending motion
for a stay of removal in this petition is DISMISSED as moot.




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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 34.1(b).


                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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