     08-4773-ag
     Chen v. Holder
                                                                            BIA
                                                                        Chase, IJ
                                                                    A097 949 749
                           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 20 th day of January, two thousand ten.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8                     Chief Judge,
 9            GUIDO CALABRESI,
10            DEBRA ANN LIVINGSTON,
11                     Circuit Judges.
12   _______________________________________
13
14   GUANG CHEN,
15            Petitioner,
16
17                    v.                              08-4773-ag
18                                                    NAC
19   ERIC H. HOLDER, Jr., U.S. ATTORNEY
20   GENERAL, 1
21              Respondent.
22   _______________________________________


                  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   FOR PETITIONER:        Steven A. Mundie, New York, New
 2                          York.
 3
 4   FOR RESPONDENT:        Tony West, Assistant Attorney
 5                          General, Francis W. Fraser, Senior
 6                          Litigation Counsel, W. Daniel Shieh,
 7                          Trial Attorney, Office of
 8                          Immigration Litigation, Civil
 9                          Division, United States Department
10                          of Justice, Washington, D.C.

1        UPON DUE CONSIDERATION of this petition for review of a

2    decision of the Board of Immigration Appeals (“BIA”), it is

3    hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4    review is DENIED.

5        Petitioner Guang Chen, a native and citizen of the

6    People’s Republic of China, seeks review of an August 29,

7    2008 order of the BIA affirming the February 27, 2007

8    decision of Immigration Judge (“IJ”) Jeffrey S. Chase,

9    denying his application for asylum, withholding of removal,

10   and relief under the Convention Against Torture (“CAT”).        In

11   re Guang Chen, No. A097 949 749 (B.I.A. Aug. 29, 2008),

12   aff’g No. A097 949 749 (Immig. Ct. N.Y. City Feb. 27, 2007).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history of the case.

15       When the BIA affirms the IJ’s decision in some respects

16   but not others, this Court reviews the IJ’s decision as

17   modified by the BIA decision.       See Xue Hong Yang v. U.S.


                                     2
1    Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).        We

2    review the agency’s factual findings, including adverse

3    credibility determinations, under the substantial evidence

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

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

6    questions of law and the application of law to undisputed

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

8    Cir. 2008).

9        Because Chen filed his asylum application after May 11,

10   2005, the amendments made to the Immigration and Nationality

11   Act by the REAL ID Act of 2005 apply to his asylum

12   application.     See Pub. L. No. 109-13, § 101(h)(2), 119 Stat.

13   231, 305 (2005).     For asylum applications governed by the

14   REAL ID Act, the agency may, considering the totality of the

15   circumstances, base a credibility finding on an asylum

16   applicant’s demeanor, the plausibility of his or her

17   account, and inconsistencies in his or her statements,

18   without regard to whether they go “to the heart of the

19   applicant’s claim.”     8 U.S.C. § 1158(b)(1)(B)(iii); see

20   Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007).

21       Substantial evidence supports the agency’s adverse

22   credibility determination.     The BIA affirmed the IJ’s

23   adverse credibility determination based on three

                                     3
1    discrepancies between Chen’s testimony and his asylum

2    application.     Under the REAL ID Act, the IJ properly relied

3    on those inconsistencies.     See 8 U.S.C.§ 1158(b)(1)(B)(iii);

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

5    2008).

6        Although Chen attempts to explain his inconsistent

7    testimony in his opening brief, he failed to present those

8    explanations before the BIA, and we will not consider them

9    in the first instance.     See 8 U.S.C. § 1252(d)(1); Lin Zhong

10   v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1(b), 119-20

11   (2d Cir. 2007).

12       Because the IJ’s adverse credibility determination was

13   supported by substantial evidence, we need not reach his

14   alternative finding that, even assuming Chen’s credibility,

15   he failed to meet his burden of proof.

16       As the only evidence of a threat to Chen’s life or

17   freedom depended upon his credibility, the adverse

18   credibility determination in this case necessarily precludes

19   success on his claims for asylum and withholding of removal

20   because both claims were based on the same factual

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

22   2006).   Chen does not challenge the agency’s denial of his

23   CAT claim in his brief to this Court.

                                     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
10                                 FOR THE COURT:
11                                 Catherine O’Hagan Wolfe, Clerk
12
13
14                                 By:____________________________




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