         08-4278-ag
         Chen v. Holder
                                                                                           BIA
                                                                                    Bukszpan, IJ
                                                                                   A200-024-889
                           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 8 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       CHUN CHEN,
15                Petitioner,
16
17                        v.                                       08-4278-ag
18                                                                 NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:                 Nathaniel K. Hsieh, Hsieh &
25                                       Associates, PC, Chicago, Illinois.
1    FOR RESPONDENT:        Tony West, Assistant Attorney
2                           General; M. Jocelyn Lopez-Wright,
3                           Senior Litigation Counsel; Judith R.
4                           O’Sullivan, Trial Attorney, Office
5                           of Immigration Litigation, United
6                           States Department of Justice, Civil
7                           Division, Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13       Petitioner Chun Chen, a native and citizen of the

14   People’s Republic of China, seeks review of a July 30, 2008

15   order of the BIA affirming the July 30, 2007 decision of

16   Immigration Judge (“IJ”) Joanna Miller Bukszpan denying his

17   application for asylum, withholding of removal, and relief

18   under the Convention Against Torture (“CAT”).   In re Chun

19   Chen, No. A200-024-889 (B.I.A. July 30, 2008), aff’g No.

20   A200-024-889 (Immig. Ct. N.Y. City July 30, 2007).   We

21   assume the parties’ familiarity with the underlying facts

22   and procedural history in this case.

23       When the BIA agrees with the IJ’s conclusion that a

24   petitioner is not credible and, without rejecting any of the

25   IJ’s grounds for decision, emphasizes particular aspects of

26   that decision, this Court reviews both the BIA’s and IJ’s


                                  2
1    opinions -- or more precisely, the Court reviews the IJ’s

2    decision including the portions not explicitly discussed by

3    the BIA.   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d

4    Cir. 2005).   We review the agency’s factual findings,

5    including adverse credibility findings, under the

6    substantial evidence standard.    8 U.S.C. § 1252(b)(4)(B);

7    see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).

8    We review de novo questions of law and the application of

9    law to undisputed fact.   See, e.g., Salimatou Bah v.

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

11       Substantial evidence supports the IJ’s adverse

12   credibility determination.   See Corovic, 519 F.3d at 95.

13   The IJ cited: (1) inconsistencies between Chen’s testimony

14   and his cousin’s testimony regarding the date Chen last

15   practiced Falun Gong; (2) inconsistencies between his

16   testimony and his cousin’s testimony regarding where he

17   practiced Falun Gong; (3) inconsistencies between his

18   testimony and his cousin’s testimony regarding the apartment

19   they allegedly shared and the family members they lived

20   with; (4) inconsistencies between his testimony and his

21   written statement regarding the year in which he was

22   arrested; and (5) Chen’s lack of knowledge about the Falun



                                   3
1    Gong flyers he allegedly posted.      Chen’s brief argues that

2    several of these inconsistencies were too minor to support

3    an adverse credibility determination.      However, under the

4    REAL ID Act, which applied to Chen’s application for relief,

5    “an IJ may rely on any inconsistency or omission in making

6    an adverse credibility determination as long as the

7    ‘totality of the circumstances’ establishes that an asylum

8    applicant is not credible.”     Xiu Xia Lin v. Mukasey, 534

9    F.3d 162, 167 (2d Cir. 2008) (emphasis in original); see

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

11   (finding that “the REAL ID Act no longer requires the trier

12   of fact to find a nexus between inconsistencies and the

13   ‘heart of the claim’”).     Moreover, although Chen offered

14   explanations for these discrepancies before the agency, no

15   reasonable fact finder would have been compelled to credit

16   them.    See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.

17   2005).

18       Given the discrepancies the IJ identified, substantial

19   evidence supports the agency’s adverse credibility

20   determination.    See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

21   Lin, 534 F.3d at 167.     Therefore, the IJ properly denied

22   Chen’s application for asylum.      The applications for


                                     4
1    withholding of removal and CAT relief were also properly

2    denied because the only evidence that Chen would be

3    persecuted or tortured depended on his credibility.   See

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

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

6    2005).

7        For the foregoing reasons, the petition for review is

8    DENIED.   As we have completed our review, any pending motion

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

10   Any pending request for oral argument in this petition is

11   DENIED in accordance with Federal Rule of Appellate

12   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
13
14
15                               FOR THE COURT:
16                               Catherine O’Hagan Wolfe, Clerk
17
18                               By:___________________________




                                   5
