         09-1290-ag
         Chen v. Holder
                                                                                        BIA
                                                                                  Brennan, IJ
                                                                                A098 222 571
                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 14 th day of December, two thousand                nine.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                JOSÉ A. CABRANES,
 9                ROBERT D. SACK,
10                     Circuit Judges.
11       _______________________________________
12
13       WEI SHANG CHEN,
14                Petitioner,
15
16                        v.                                    09-1290-ag
17                                                              NAC
18       ERIC H. HOLDER, Jr., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                Michael Brown, New York, New York.
1    FOR RESPONDENT:         Tony West, Assistant Attorney
2                            General, David V. Bernal, Assistant
3                            Director, Lauren E. Fascett, Trial
4                            Attorney, Office of Immigration
5                            Litigation, Civil Division, United
6                            States Department of Justice,
7                            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 Wei Shang Chen, a native and citizen of the

6    People’s Republic of China, seeks review of a March 10, 2009

7    order of the BIA affirming the July 11, 2007 decision of

8    Immigration Judge (“IJ”) Noel Brennan, denying his

9    application for asylum, withholding of removal, and relief

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

11   Shang Chen, No. A098 222 571 (B.I.A. Mar. 10, 2009), aff’g

12   No. A098 222 571 (Immig. Ct. N.Y. City July 11, 2007).      We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history of the case.

15        When the BIA issues an opinion that fully adopts the

16   IJ’s decision, this Court reviews the IJ’s decision.     See

17   Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d

18   Cir. 2007).   We review the agency’s factual findings,


                                   2
1    including adverse credibility determinations, under the

2    substantial evidence standard. 1   See 8 U.S.C. §

3    1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95

4    (2d Cir. 2008).   We review de novo questions of law and the

5    application of law to undisputed fact.    See Salimatou Bah v.

6    Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

7        Substantial evidence supports the IJ’s adverse

8    credibility determination.   The IJ reasonably relied on

9    Chen’s demeanor, which she found to be “particularly

10   telling.”   This Court ordinarily affords particular

11   deference to the IJ’s assessment of demeanor, see Majidi v.

12   Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005); Zhou Yun Zhang

13   v. INS, 386 F.3d 66, 73-74 (2d Cir. 2004), and Chen advances

14   no argument suggesting that we should not do so here,

15   particularly when the IJ offered additional inconsistency

16   findings.   See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d

17   99, 109 (2d Cir. 2006) (“We can be . . . more confident in

18   our review of observations about an applicant’s demeanor



            1
              Because Chen filed his asylum application before
       May 11, 2005, the amendments made to the Immigration and
       Nationality Act by the REAL ID Act of 2005 do not apply
       to his asylum application. See Pub. L. No. 109-13,
       § 101(h)(2), 119 Stat. 231, 305 (2005).

                                   3
1    where . . . they are supported by specific examples of

2    inconsistent testimony.”).

3        Furthermore, there is no merit to Chen’s argument that his

4    inconsistent testimony did not justify an adverse credibility

5    finding.   The IJ found that: (1) although Chen initially

6    testified that he was detained at 8:00 a.m., he later stated

7    that he was detained at 10:00 a.m.; (2) although Chen

8    submitted evidence stating that he hid at his aunt’s house

9    following his detention, he testified that he left his aunt’s

10   house to stay with a friend; and (3) although a letter from

11   his father states that Chen was also detained in July 1999,

12   Chen testified that the incident occurred in September 1999.

13   Although minor and isolated discrepancies may be insufficient

14   to support an adverse credibility finding, see Diallo v. INS,

15   232 F.3d 279, 288 (2d Cir. 2000), the multiple discrepancies

16   here were not minor, and they relate to events that go to the

17   heart of Chen’s claim – his prior detentions and beatings by

18   government officials.   Thus, the IJ reasonably relied on their

19   cumulative effect to call into question Chen’s credibility.

20   See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006).

21       There is also no merit to Chen’s assertion that the IJ’s

22   finding regarding the sufficiency of the corroborating



                                     4
1    evidence he submitted was erroneous.       An IJ need not first

2    identify the particular pieces of missing, relevant evidence,

3    and show that this evidence was reasonably available to the

4    applicant before relying on a lack of corroboration to support

5    an adverse credibility finding.       See Xiao Ji Chen v. U.S.

6    Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 2006).       As the IJ

7    did not find Chen’s testimony credible, she properly noted the

8    absence of documentary evidence that may have corroborated his

9    claim.   See id.

10       These proper findings notwithstanding, as Chen asserts,

11   the agency erred in finding that he provided inconsistent

12   testimony as to his beating by Village Committee members

13   during his 2004 detention.   Indeed, the record reveals that

14   prior to his merits hearing, Chen submitted a corrected asylum

15   application stating that he was beaten in the course of that

16   detention.   However, remand would be futile in this case

17   because the IJ’s broader credibility determination is amply

18   supported by the record and it can be confidently predicted

19   based on the IJ’s non-erroneous findings that the agency would

20   reach the same credibility determination absent this error.

21   See id. at 335.

22       Accordingly, substantial evidence supports the agency’s


                                       5
1    adverse credibility determination.   See 8 U.S.C.

2    § 1158(b)(1)(B)(iii).   Because the only evidence of a threat

3    to Chen’s life or freedom depended upon his credibility, the

4    adverse credibility determination in this case necessarily

5    precludes success on his claim for withholding of removal and

6    CAT relief.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

7    2006); Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003).

8        For the foregoing reasons, the petition for review is

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

10   that the Court previously granted in this petition is VACATED,

11   and any pending motion for a stay of removal in this petition

12   is DISMISSED as moot. Any pending request for oral argument in

13   this petition is DENIED in accordance with Federal Rule of

14   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

15   34(b).

16                               FOR THE COURT:
17                               Catherine O’Hagan Wolfe, Clerk
18
19
20                               By:____________________________




                                     6
