         10-2005-ag
         Chen v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A094 794 540
                           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 24th day of April, two thousand twelve.
 5
 6       PRESENT:
 7
 8                RALPH K. WINTER,
 9                ROBERT A. KATZMANN,
10                DEBRA ANN LIVINGSTON,
11                    Circuit Judges.
12       _______________________________________
13
14       DONG PIN CHEN,
15                Petitioner,
16
17                        v.                                    10-2005-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., U.S. ATTORNEY
20       GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Lee Ratner, New York, NY
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Christopher C. Fuller,
28                                     Senior Litigation Counsel; Zoe J.
29                                     Heller, Civil Division, Office of
30                                     Immigration Litigation, U.S.
31                                     Department of Justice, Washington
32                                     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       Dong Pin Chen, a native and citizen of the People’s

 6   Republic of China, seeks review of the April 23, 2010, order

 7   of the BIA affirming the April 7, 2008, decision of

 8   Immigration Judge (“IJ”) Sandy K. Hom denying his

 9   application for asylum, withholding of removal, and relief

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

11   Pin Chen, No. A094 794 540 (B.I.A. Apr. 23, 2010), aff’g No.

12   A094 794 540 (Immig. Ct. N.Y. City Apr. 7, 2008).      We assume

13   the parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and the BIA’s opinions “for the sake of

17   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18   2008).     The applicable standards of review are well-

19   established.     See 8 U.S.C. § 1252(b)(4)(B); Corovic v.

20   Mukasey, 519, F.3d 90, 95 (2d Cir. 2008); Xiu Xia Lin v.

21   Mukasey,     534 F.3d 162, 167 (2d Cir. 2008).   As an initial

22   matter, Chen does not challenge the agency’s denial of CAT

23   relief or determination that he did not establish his

                                     2
 1   eligibility for relief based on his practice of Falun Gong

 2   in the United States, and thus we do not address those

 3   claims and address only the merits of Chen’s petition as it

 4   pertains to the agency’s adverse credibility and burden

 5   findings related to asylum and withholding of removal based

 6   on past persecution.    See Yueqing Zhang v. Gonzales, 426

 7   F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (providing that

 8   “[i]ssues not sufficiently argued in the briefs are

 9   considered waived and normally will not be addressed on

10   appeal”) (citation omitted).

11       Petitioner concedes that, following the passage of the

12   REAL ID Act, an ability to depart China using one’s own

13   passport may be an appropriate factor on which to base an

14   implausibility finding,.    See Ying Li v. BCIS, 529 F.3d 79,

15   82-83 (2d Cir. 2008).   In Ying Li, based on a “totality of

16   the circumstances” analysis, this Court upheld an adverse

17   credibility determination where petitioner: (1) claimed to

18   promote Falun Gong for over six years without ever learning

19   or practicing it herself; (2) claimed she was sought by

20   police, but testified that a known Falun Gong practitioner

21   openly visited her home and was never arrested; (3) departed

22   China from an airport using her own passport; and

23   (4) recited only “elementary information” about Falun Gong

                                    3
 1   and presented photographs of herself practicing Falun Gong

 2   on only a single occasion.   Id.

 3         However, petitioner argues that we have never held that

 4   such an ability by itself is substantial evidence sufficient

 5   to support an adverse credibility determination.     See id.

 6   (holding that “when an adverse credibility finding is based

 7   partly or entirely on implausibility, we review the entire

 8   record, not whether each unusual or implausible feature of

 9   the account can be explained or rationalized.”).     We

10   disagree with this description of the record before us.        The

11   adverse credibility decision in this matter was not based

12   solely on petitioner’s use of his own passport to leave

13   China but on the implausibility of his claim of persecution

14   given the overall context in which his passport was used.

15   Id.   Petitioner testified that when he used his passport, he

16   was an escaped prisoner and in hiding and that the police

17   were looking for him “everywhere.”     The finding that this

18   scenario was implausible hardly gave excessive, much less

19   exclusive, weight to petitioner’s use of his passport.     Nor

20   is the finding otherwise irrational.     Id.

21         We therefore need not address the agency’s alternative

22   determination that Chen failed to demonstrate that the harm

23   he suffered amounted to persecution.

                                   4
 1       For the foregoing reasons, the petition for review is

 2   DENIED.   As we have completed our review, any stay of

 3   removal that the Court previously granted in this petition

 4   is VACATED, and any pending motion for a stay of removal in

 5   this petition is DISMISSED as moot.    Any pending request for

 6   oral argument in this petition is DENIED in accordance with

 7   Federal Rule of Appellate Procedure 34(a)(2), and Second

 8   Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12




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