    08-4534-ag
    Liu v. Holder
                                                                                  BIA
                                                                            Laforest, IJ
                                                                          A200 040 177
                      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 12 th day of January, two thousand ten.

    PRESENT:
                    HON. DENNIS JACOBS,
                                  Chief Judge,
                    HON. ROSEMARY S. POOLER,
                    HON. REENA RAGGI,
                                  Circuit Judges.

    _______________________________________

    WEN YUAN LIU,
             Petitioner,

                     v.                                    08-4534-ag
                                                           NAC
    ERIC H. HOLDER JR., ATTORNEY
    GENERAL, *
               Respondent.

    _______________________________________




             *
            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 the respondent in this case.
FOR PETITIONER:            Michael Brown, New York, New York.

FOR RESPONDENT:            Michael F. Hertz, Acting Assistant
                           Attorney General, Barry J. Pettinato,
                           Assistant Director, John D. Williams,
                           Trial    Attorney,    United    States
                           Department of Justice, Civil Division,
                           Office  of   Immigration   Litigation,
                           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 DENIED.

    Petitioner Wen Yuan Liu, a native and citizen of the

People’s Republic of China, seeks review of the August 29,

2008 order of the BIA affirming the April 10, 2007 decision of

Immigration   Judge     (“IJ”)    Brigitte    Laforest,    denying    his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).             In re Wen Yuan

Liu, No. A200 040 177 (B.I.A. Aug. 29, 2008), aff’g No. A200

040 177 (Immig. Ct. N.Y. City Apr. 10, 2007).             We assume the

parties’ familiarity with the underlying facts and procedural

history of the case.

    When   the    BIA    adopts    the    decision   of    the   IJ   and

supplements the IJ’s decision, we review the decision of the

IJ as supplemented by the BIA.          See Yan Chen v. Gonzales, 417

F.3d 268, 271 (2d Cir. 2005).       We review the agency’s factual

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findings, including adverse credibility determinations, under

the    substantial        evidence     standard.          See   8     U.S.C.    §

1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.

2007).       For applications governed by the REAL ID Act of 2005,

the agency may, considering the totality of the circumstances,

base a credibility finding on an asylum applicant’s demeanor,

the plausibility of his or her account, and inconsistencies in

his or her statements, without regard to whether they go “to

the    heart     of     the    applicant’s       claim.”        8     U.S.C.    §

1158(b)(1)(B)(iii); see Matter of J-Y-C-, 24 I. & N. Dec. 260,

265 (B.I.A 2007).

      As an initial matter, because Liu fails to raise before

this Court any challenge to the agency’s denial of his CAT

claim,   we     deem    that   claim   waived.      See    Yueqing    Zhang    v.

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

      Regarding Liu’s asylum and withholding of removal claims,

we    find    that     substantial     evidence    supports     the    agency’s

adverse credibility determination.               For example, the IJ found

that while Liu testified that the cadres had scalded his hand

with hot water, this allegation did not appear in his written

statement or his father’s letter.            Moreover, the IJ found that

while Liu’s written statement and his father’s letter alleged

that the cadres had forced him to squat in an uncomfortable

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position for a long period of time, he did not testify to this

allegation on direct or cross examination.                       The IJ reasonably

relied on these inconsistencies when making her credibility

determination.           See    8     U.S.C.      §   1158(b)(1)(B)(iii).              In

addition,       we    defer    to     the   IJ’s      observations         that   Liu’s

demeanor       during    his   testimony          suggested      that      he   was   not

testifying about his actual experiences.                      See id.; Shu Wen Sun

v. BIA, 510 F.3d 377, 380-81 (2d Cir. 2007).                          Under the REAL

ID Act, these findings were sufficient to support the agency’s

conclusion that Liu was not credible.                         See Xiu Xia Lin v.

Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

       Furthermore, we discern no error in the IJ’s conclusion

that     the     evidence      Liu      submitted         was       insufficient       to

rehabilitate his incredible testimony.                        See Xiao Ji Chen v.

U.S.    Dep’t    of   Justice,        471   F.3d      315,    342    (2d   Cir.   2006)

(noting that the weight afforded to the applicant’s evidence

in immigration proceedings lies largely within the discretion

of     the     IJ);     see    also     8       U.S.C.    §     1158(b)(1)(B)(ii).

Accordingly, the agency’s denial of Liu’s application for

asylum was not improper.             Because Liu’s withholding of removal

claim was premised on the same factual predicate as his asylum

claim, the adverse credibility determination was fatal to

both.        See Paul v. Gonzales, 444                   F.3d 148, 156 (2d Cir.

2006).

                                            4
    For the foregoing reasons, the petition for review is

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

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



                            FOR THE COURT:
                            Catherine O'Hagan Wolfe, Clerk

                            By:___________________________




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