          08-5974-ag
          Chen v. Holder
                                                                                                           BIA
                                                                                                  Balasquide, IJ
                                                                                                  A099 082 631
                              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 1 st day of April, two thousand ten.
 5
 6        PRESENT:
 7                 JON O. NEWMAN,
 8                 BARRINGTON D. PARKER,
 9                 RICHARD C. WESLEY,
10                          Circuit Judges.
11        _______________________________________
12
13        SHI GUAN CHEN,
14                 Petitioner,
15
16                         v.                                                  08-5974-ag
17                                                                             NAC
18        ERIC H. HOLDER JR., ATTORNEY GENERAL, 1
19                 Respondent.
20        _______________________________________
21        FOR PETITIONER:        Vlad Kuzmin, New York, New York.




                       1
                     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.
 1
 2   FOR RESPONDENT:        Tony West, Assistant Attorney
 3                          General, Ernesto H. Molina, Jr.,
 4                          Assistant Director, Andrew N.
 5                          O’Malley, Trial Attorney, Office of
 6                          Immigration Litigation, United
 7                          States Department of Justice,
 8                          Washington, D.C.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

11   Board of Immigration Appeals (“BIA”) decision, it is hereby

12   ORDERED, ADJUDGED, AND DECREED, that the petition for review

13   is DENIED.

14       Shi Guan Chen, a citizen of the People’s Republic of

15   China, seeks review of a November 6, 2008 order of the BIA,

16   affirming the April 19, 2007 decision of Immigration Judge

17   (“IJ”) Javier E. Balasquide, which denied his application

18   for asylum, withholding of removal, and relief under the

19   Convention Against Torture (“CAT”).   In re Shi Guan Chen,

20   No. A099 082 631 (B.I.A. Nov. 6, 2008), aff’g No. A099 082

21   631 (Immig. Ct. N.Y. City Apr. 19, 2007).   We assume the

22   parties’ familiarity with the underlying facts and

23   procedural history in this case.

24       When the BIA’s opinion adopts the IJ’s decision, this

25   Court reviews the IJ’s decision.   See Mei Chai Ye v. U.S.

26   Dep’t of Justice, 489 F.3d 517, 523 (2d Cir. 2007).   We

27   review the agency’s factual findings, including adverse

                                  2
1    credibility determinations, under the substantial evidence

2    standard.     See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v.

3    Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).     We review de novo

4    questions of law and the application of law to undisputed

5    fact.     See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d

6    Cir. 2008).

7        A review of the record reveals that the agency’s

8    adverse credibility determination was supported by

9    substantial evidence.     See 8 U.S.C. § 1252(b)(4)(B); see

10   also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

11   2008).     The IJ reasonably found implausible Chen’s testimony

12   that he could not remember his own mother-in-law’s name,

13   where Chen alleged that his wife hid for several months with

14   his mother-in-law and that he hid with her for 10 days.        The

15   IJ also reasonably concluded that Chen’s demeanor suggested

16   that he was not telling the truth, where he was able to

17   quickly answer some questions but was evasive in answering

18   others.     See Shu Wen Sun v. BIA, 510 F.3d 377, 381 (2d Cir.

19   2007) (per curiam) (giving “particular deference” to IJ’s

20   finding that petitioner testified “in a manner that

21   suggested untruthfulness, rather than nervousness or

22   difficulty comprehending the proceedings”).     Therefore, it


                                     3
1    was not error for the agency to rely on Chen’s demeanor in

2    rendering its adverse credibility determination.

3        The IJ also reasonably relied on the inconsistency

4    between Chen’s asylum application, in which he stated that

5    his wife learned she was pregnant a second time in October

6    1998, and his testimony, in which he stated that she learned

7    of her second pregnancy in November 1998.      Because this

8    inconsistency, even if it is minor, is supported by the

9    record, the IJ did not err in relying on it in making his

10   adverse credibility finding.   See 8 U.S.C.

11   § 1158(b)(1)(b)(iii).   In addition, the IJ reasonably noted

12   that while Chen testified that he and his wife left his

13   mother-in-law’s home, where they had been in hiding, to live

14   in Fuzhou where he had secured a job immediately prior to

15   his wife’s arrest by family planning authorities, he omitted

16   this detail from his asylum application.      While this

17   omission may also have been minor, it nonetheless supported

18   the IJ’s adverse credibility determination in light of the

19   previously discussed discrepancies.   See 8 U.S.C.

20   § 1158(b)(1)(B)(iii); Liang Chen v. U.S. Att’y Gen., 454

21   F.3d 103, 106-07 (2d Cir. 2006).   Ultimately, under the REAL

22   ID Act, the agency’s adverse credibility determination was


                                    4
1    supported by substantial evidence because it is not “plain,”

2    given “the totality of the circumstances,” “that no

3    reasonable fact-finder could make such an adverse

4    credibility ruling.”   See Xiu Xia Lin, 534 F.3d at 167.

5        In his brief to this Court, Chen for the first time

6    challenges the individual bases for the IJ’s adverse

7    credibility determination, arguing that: (1) the IJ erred in

8    finding that he could not remember his mother-in-law’s name,

9    when he was only unable to remember the third character in

10   her name; (2) he was not inconsistent regarding when his

11   wife became pregnant a second time because October and

12   November sound alike in Fuzhou dialect and there could have

13   been a translation error; and (3) there is no inconsistency

14   as to whether his wife went with him to Fuzhou because he

15   simply forgot to write it down.   In addition to the

16   statutory requirement that petitioners exhaust each category

17   of relief, see 8 U.S.C. § 1252(d)(1), we generally will not

18   consider arguments regarding individual issues that were not

19   exhausted before the agency.   See Lin Zhong v. U.S. Dep’t of

20   Justice, 480 F.3d 104, 107 n.1, 122-23 (2d Cir. 2007).

21   While not jurisdictional, this judicially-imposed issue

22   exhaustion requirement is mandatory.   Id. at 119-20.

23       On appeal to the BIA, Chen failed to challenge with any
                                  5
1    specificity the findings that formed the basis of the IJ’s

2    adverse credibility determination.       We will not now consider

3    Chen’s newly-minted arguments where the BIA never had the

4    opportunity to consider them.       See Theodoropoulos v. INS,

5    358 F.3d 162, 171 (2d Cir. 2004)

6        Because the agency’s adverse credibility finding was

7    supported by substantial evidence, its denial of Chen’s

8    application for asylum, withholding of removal, and relief

9    under the CAT was proper because these claims were based on

10   the same factual predicate.     See also Paul v. Gonzales, 444

11   F.3d 148, 156 (2d Cir. 2006).

12       In addition, Chen argues for the first time before this

13   Court that he is entitled to withholding of removal and CAT

14   relief because he will face torture and imprisonment because

15   he illegally departed China.     Because this argument also was

16   not raised before the agency, we decline to entertain it.

17   See 8 U.S.C. § 1252(d)(1); Lin Zhong, 480 F.3d at 119-20.

18       For the foregoing reasons, the petition for review is

19   DENIED.   As we have completed our review, the pending motion

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

21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23
24
25
26



                                     6
