         09-1781-ag
         Dong-Lin v. Holder
                                                                                        BIA
                                                                                  Abrams, IJ
                                                                               A 094 924 328
                               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 12 th day of March, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                        Chief Judge,
 9                JOSEPH M. McLAUGHLIN,
10                GERARD E. LYNCH,
11                        Circuit Judges.
12       _______________________________________
13
14       XIN DONG-LIN,
15                Petitioner,
16
17                            v.                                09-1781-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., U.S. ATTORNEY
20       GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:                Gary J. Yerman, New York, New York.
25
26       FOR RESPONDENT:                Tony West, Assistant Attorney
27                                      General; Leslie McKay, Assistant
28                                      Director; M. Jocelyn Lopez Wright,
29                                      Senior Litigation Counsel, Office of
30                                      Immigration Litigation, Washington
31                                      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 Xin Dong-Lin, a native and citizen of China,

6    seeks review of the April 15, 2009, order of the BIA

7    affirming the February 8, 2008, decision of Immigration

8    Judge (“IJ”) Steven R. Abrams denying his application for

9    asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).     In re Xin Dong-Lin, No.

11   A 094 924 328 (B.I.A. Apr. 15, 2009), aff’g No. A 094 924

12   328 (Immig. Ct. N.Y. City Feb. 8, 2008).     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 review both

16   the IJ’s and the BIA’s decisions.     See Yan Chen v. Gonzales,

17   417 F.3d 268, 271 (2d Cir. 2005).     The applicable standards

18   of review are well-established.     See 8 U.S.C.

19   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

20   (2d Cir. 2009).

21       Dong-Lin does not challenge the IJ’s finding that,

22   although he alleged that a photograph of him practicing


                                  2
1    Falun Gong was taken at a rally in Flushing, NY on June 11,

2    2007, he submitted the photograph at a hearing one week

3    earlier, on June 5, 2007.    Therefore, that finding stands as

4    a valid basis for the IJ’s adverse credibility

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

6    (2d Cir. 2008).

7        Furthermore, in his brief to the BIA, Dong-Lin did not

8    challenge: (1) the IJ’s reliance on the record of his

9    credible fear interview, the frequency of his Falun Gong

10   practice, and his proficiency in Falun Gong in assessing his

11   credibility; (2) the IJ’s findings regarding his motivation

12   for practicing Falun Gong in the United States; and (3) the

13   IJ’s finding that he failed to sufficiently corroborate his

14   claim.   Because the agency never had the opportunity to

15   consider these specific arguments, we will not do so in the

16   first instance.    See Theodoropoulos v. I.N.S., 358 F.3d 162,

17   171 (2d Cir. 2004); Lin Zhong v. U.S. Dep’t of Justice, 480

18   F.3d 104, 123, 124 n.24 (2d Cir. 2007).

19       Dong-Lin argues that the IJ erred in finding that his

20   testimony conflicted with that of his uncle regarding his

21   Falun Gong practice in the United States.    To the extent

22   Dong-Lin argues that the inconsistencies “relate to very


                                    3
1    minor details,” under the REAL ID Act, “an IJ may rely on

2    any inconsistency or omission in making an adverse

3    credibility determination as long as the ‘totality of the

4    circumstances’ establishes that the asylum applicant is not

5    credible.”   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d

6    Cir. 2008) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)).

7    Furthermore, Dong-Lin challenges only the IJ’s finding that,

8    although his uncle testified that Dong-Lin practices only in

9    his bedroom, photographs showed him practicing in the living

10   room.   However, the IJ also found that Dong-Lin’s testimony

11   that he practiced Falun Gong at a park in Flushing, NY, on

12   only two occasions, and did not otherwise practice outside

13   his home, contradicted his uncle’s testimony that he

14   practiced at a park in Brooklyn.     Dong-Lin does not

15   challenge this finding in his brief.     We further find,

16   contrary to Dong-Lin’s argument, that the IJ’s demeanor

17   finding was not erroneous.   See Majidi v. Gonzales, 430 F.3d

18   77, 81 n.1 (2d Cir. 2005).

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 167.        Therefore,

22   the IJ did not err in denying his application for asylum and



                                   4
1    withholding of removal.    See Paul v. Gonzales, 444 F.3d 148,

2    156 (2d Cir. 2006).

3        Dong-Lin has waived any challenge to the agency’s

4    denial of his claim for CAT relief by not sufficiently

5    arguing that issue in his brief.    See Yueqing Zhang v.

6    Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005)

7    (finding that issues not sufficiently argued in the briefs

8    are considered waived and normally will not be addressed on

9    appeal).

10       For the foregoing reasons, the petition for review is

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

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

13   Any pending request for oral argument in this petition is

14   DENIED in accordance with Federal Rule of Appellate

15   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
16
17                                FOR THE COURT:
18                                Catherine O’Hagan Wolfe, Clerk
19
20
21




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