    09-0204-ag
    Chen v. Holder
                                                                                  BIA
                                                                               Hom, IJ
                                                                          A096-108-947
                      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 11 th day of February, two thousand               ten.

    PRESENT:
             JON O. NEWMAN,
             JOSÉ A. CABRANES,
             PETER W. HALL,
                     Circuit Judges.
    ______________________________________

    TIANJIE CHEN, ALSO KNOWN AS TIAN TZE
    CHEN,
             Petitioner,

                     v.                                    09-0204-ag
                                                           NAC
    ERIC H. HOLDER JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:               Michael Brown, New York, New York.
FOR RESPONDENT:        Tony West, Assistant Attorney
                       General, Civil Division; Daniel E.
                       Goldman, Senior Litigation Counsel,
                       Office of Immigration Litigation;
                       Andrew B. Insenga, Trial Attorney,
                       United States Department of Justice,
                       Office of Immigration Litigation,
                       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.

     Petitioner, TianJie Chen, a native and citizen of the
People’s Republic of China, seeks review of a December 19,
2008 order of the BIA affirming the July 20, 2006 decision
of Immigration Judge (“IJ”) Sandy K. Hom denying Chen’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re TianJie
Chen, No. A 096 108 947 (B.I.A. Dec. 19, 2008), aff’g No.
A 096 108 947 (Immig. Ct. N.Y. City July 20, 2006). We
assume the parties’ familiarity with the underlying facts
and procedural history of the case.

     When the BIA adopts the conclusions of the IJ and
upholds the IJ’s adverse credibility finding but does so for
reasons other than those cited in the IJ’s decision, this
Court reviews the decision of the IJ as supplemented by the
BIA, provided that the BIA’s supplemental findings do not
extend beyond the scope of its review under 8 C.F.R.
§ 1003.1(d)(3)(I), (iv). See Xian Tuan Ye v. DHS, 446 F.3d
289, 293, 296 (2d Cir. 2006). Here, the BIA affirmed the
IJ’s credibility determination and then made additional
findings concerning Chen’s credibility. Chen does not argue
that the BIA acted ultra vires in making those additional
findings, so we need not address that issue. Because the
IJ’s credibility findings were sufficient to support the
result reached, however, we do not analyze the BIA’s
additional findings.

     We review the agency’s factual findings, including
adverse credibility findings, under the substantial evidence
standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.

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Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We review de novo
questions of law and the application of law to undisputed
fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d
Cir. 2008).

     Substantial evidence supports the agency’s adverse
credibility determination. See Corovic, 519 F.3d at 95.
Chen does not challenge before this Court the IJ’s findings
that: (1) his testimony was vague concerning how and where
he learned to practice Falun Gong; (2) his testimony that
Falun Gong is a religion conflicted with evidence indicating
it is not; and (3) his testimony that he sometimes practiced
Falun Gong in a public park was inconsistent with his
testimony that he normally practiced in public. Because
Chen does not challenge those findings, they stand as valid
bases for the IJ’s adverse credibility determination. See
Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). We
proceed to consider the challenged findings.

     As the IJ found, Chen testified that he started
practicing Falun Gong on March 15, 2003, he attended his
first Falun Gong association meeting a month later, and he
never became a member of that association. This was
contradicted by evidence in the form of a certificate from
that Falun Gong association indicating that Chen first
attended a meeting there on March 15, 2003 and that he was a
member. Similarly, while Chen testified that he went to “a
local clinic in the village” instead of a “big hospital” to
seek medical assistance for the conditions that led him to
practice Falun Gong, his parents’ letter indicates that they
took him “to many hospitals to seek various medical
treatments.” Although Chen offered explanations for those
inconsistencies, we find no error in the agency’s refusal to
credit them. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005). *




      *
        We decline to consider Chen’s unexhausted argument
  that there was an error in the translation of his
  parents’ letter that he submitted before the IJ. See Lin
  Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d
  Cir. 2007).

                             3
     The IJ also reasonably found implausible Chen’s
testimony that he practiced Falun Gong in a public park
despite the government’s ban on its practice. As the BIA
noted, Chen’s response to the question of why he would be
willing to do so – “[i]f you want to practice Falun Gong
with other people, then you have to go to [the] park to
practice” – did not explain why he would be willing to take
that risk. See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d
Cir. 2007) (finding that where “the reasons for [the IJ’s]
incredulity are evident,” the implausibility finding is
supported by substantial evidence because it is tethered to
the record).

     To the extent that Chen challenges the agency’s other
credibility findings, we need not reach those arguments.
Even if the arguments have some merit, remand would be
futile as we can confidently predict that the agency would
reach the same conclusion on remand. See Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 338-39 (2d Cir. 2006).

     Because substantial evidence supports the IJ’s adverse
credibility determination, see Corovic, 519 F.3d at 95,
Chen’s claims for asylum, withholding of removal, and CAT
relief each fail. The only evidence that he was likely to
be persecuted or tortured depended upon his credibility.
See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue
Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d
Cir. 2005).

     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any pending motion
for a stay of removal in this petition is DISMISSED as moot.
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(b).

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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