         11-4784
         Chen v. Holder
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A087 433 087
                            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 28th day of September, two thousand twelve.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                DENNY CHIN,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _______________________________________
12
13       HUA CHEN,
14                        Petitioner,
15
16                        v.                                    11-4784
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 Oleh R. Tustaniwsky, Brooklyn, New
24                                       York.
25
26       FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
27                                       Attorney General; Cindy S. Ferrier,
28                                       Assistant Director; Brendan P.
29                                       Hogan, Attorney, Office of
30                                       Immigration Litigation, United
31                                       States Department of Justice,
32                                       Washington, 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       Hua Chen, a native and citizen of the People’s Republic

 6   of China, seeks review of an October 31, 2011, decision of

 7   the BIA affirming the March 15, 2010, decision of

 8   Immigration Judge (“IJ”) Mary Cheng, which denied her

 9   application for asylum, withholding of removal, and relief

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

11   Chen, No. A087 433 087 (B.I.A. Oct. 31, 2011), aff’g No.

12   A087 433 087 (Immig. Ct. N.Y. City Mar. 15, 2010).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as supplemented by the BIA.    See Yan Chen

17   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).   The

18   applicable standards of review are well-established.        See 8

19   U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

20   F.3d 510, 513 (2d Cir. 2009).

21       Initially, while we require petitioners to raise

22   specific issues with the BIA that are later raised in this

23   Court, Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (per

                                     2
 1   curiam), where, as here, the BIA addresses issues that were

 2   not raised by an applicant in the course of an appeal, we

 3   may consider them, Waldron v. INS, 17 F.3d 511, 515 n.7 (2d

 4   Cir. 1994).

 5       The BIA determined that the IJ’s adverse credibility

 6   determination was not clearly erroneous because it was based

 7   on “specific and cogent discrepancies” within Chen’s

 8   testimony, and between her testimony and the documentary

 9   evidence.     We find that the BIA’s determination is supported

10   by substantial evidence.

11       The IJ found Chen’s demeanor to be “troubling” because

12   her testimony was “non-responsive, evasive and rehearsed.”

13   For example, Chen was unable to answer a straightforward

14   question regarding her fear of returning to China.     Chen

15   does not challenge the demeanor findings, noting only that

16   “[t]he [IJ] was also critical of [her] demeanor.”     As Chen

17   has not contested the demeanor findings, she has provided no

18   basis for us to disturb the particular deference due to

19   those findings.     Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

20   Cir. 2005).

21       The IJ also determined that Chen’s testimony was

22   inconsistent with record evidence regarding when during her

23   pregnancy her alleged abortion occurred, how long the


                                     3
 1   abortion procedure lasted, and whether she entered the

 2   United States for religious reasons or because of her

 3   opposition to China’s family planning policies.    For

 4   example, Chen’s testimony that she was four months pregnant

 5   when the forced abortion occurred in 2008 was inconsistent

 6   with medical records as well as her sworn statement during

 7   her credible fear interview showing that she was only two

 8   months pregnant.   Chen’s explanation for this discrepancy

 9   that she was two months pregnant at the time of her medical

10   exam, but four months pregnant at the time of the abortion

11   procedure, is inadequate to compel a reasonable fact-finder

12   to credit it, because it fails to explain why Chen told an

13   asylum officer that she was two months pregnant when the

14   procedure occurred.   Id.

15       Finally, the IJ found Chen’s asylum claim to be

16   implausible because she was unable to reconcile her

17   testimony that the hospital medical staff was able to obtain

18   personal information such as her age, address, and medical

19   history, with her testimony that she was unable to speak

20   with anyone at the hospital during her abortion procedure

21   because she was in pain.    Chen’s argument that “it can

22   safely be assumed” that the family planning officials who

23   forcibly took her to the hospital already knew the

                                    4
 1   information would not compel a reasonable fact-finder to

 2   credit her testimony, especially where Chen also testified

 3   that she previously had not been to the hospital where the

 4   abortion procedure occurred.    Id. at 80.

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

 6   freedom depended upon her credibility, the adverse

 7   credibility determination in this case is dispositive of her

 8   claims for asylum, withholding of removal, and CAT relief.

 9   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue

10   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d

11   Cir. 2005).

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

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

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

17   oral argument in this petition is DENIED in accordance with

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

19   Circuit Local Rule 34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22




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