         08-0045-ag
         Chen v. Holder
                                                                                        BIA
                                                                                   Ferris, IJ
                                                                               A073 488 658
                           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 26 th day of April, 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       HONG YUE CHEN,
15                Petitioner,
16
17                        v.                                    08-0045-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., * UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24


                      *
                   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:         Peter D. Lobel, New York, New York.
 2
 3   FOR RESPONDENT:         Gregory G. Katsas, Acting Assistant
 4                           Attorney General; Linda S. Wernery,
 5                           Assistant Director; Gregory M.
 6                           Kelch, Attorney, Office of
 7                           Immigration Litigation, United
 8                           States Department of Justice,
 9                           Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

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

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

14   is DENIED.

15       Hong Yue Chen, a native and citizen of the People’s

16   Republic of China, seeks review of a December 7, 2007 order

17   of the BIA affirming the December 8, 2005 decision of

18   Immigration Judge (“IJ”) Noel Ferris, which denied her

19   application for asylum, withholding of removal, and relief

20   under the Convention Against Torture (“CAT”).   In re Hong

21   Yue Chen, No. A073 488 658 (B.I.A. Dec. 7, 2007), aff’g No.

22   A073 488 658   (Immig. Ct. N.Y. City Dec. 8, 2005).    We

23   assume the parties’ familiarity with the underlying facts

24   and procedural history in this case.

25       Under the circumstances of this case, we review the

26   IJ’s decision as supplemented by the BIA’s decision.        See

27   Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).


                                   2
1    The applicable standards of review are well-established.

2    See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

3    Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

4    I.   Past Persecution: Adverse Credibility

5         We find no error in the agency’s adverse credibility

6    determination.     See Secaida-Rosales v. INS, 331 F.3d 297,

7    307 (2d Cir. 2003) (finding that a n adverse credibility

8    determination must be based on “specific, cogent reasons”

9    that “bear a legitimate nexus” to the finding).

10        The IJ reasonably relied on inconsistencies between [i]

11   Chen’s testimony and [ii] the record of her airport

12   interview in which she stated she was not married, had no

13   children, and never mentioned suffering a forced abortion.

14   Notwithstanding Chen’s argument, the record of the airport

15   interview is reliable.     See Ramsameachire v. Ashcroft, 357

16   F.3d 169, 179 (2d Cir. 2004).

17        We defer to the IJ’s determination that Chen’s overall

18   demeanor and her unresponsiveness undermined her

19   credibility.     See Shu Wen Sun v. Board of Immigration

20   Appeals, 510 F.3d 377, 380-81 (2d Cir. 2007); Majidi v.

21   Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).     To the extent

22   that Chen offered explanations for these discrepancies, the


                                     3
1    IJ was not compelled to credit them.     See Majidi, 430 F.3d

2    at 80-81.

3          We need not consider the additional credibility

4    findings because the findings discussed above were adequate

5    support for the adverse credibility finding.      See Xian Tuan

6    Ye v. DHS, 446 F.3d 289, 294 (2d Cir. 2006).      Because Chen’s

7    applications for withholding of removal and CAT relief were

8    based on the same factual predicate as her asylum claim,

9    those claims necessarily fail.    See Paul v. Gonzales, 444

10   F.3d 148, 154 (2d Cir. 2006) ; Gomez v. INS, 947 F.2d 660,

11   665 (2d Cir. 1991).

12   II.   Well-Founded Fear: Burden of Proof

13         Substantial evidence supports the agency’s finding that

14   Chen failed to demonstrate a well-founded fear that she

15   would be sterilized in China based on the birth of her three

16   children (two of whom are U.S. citizens).      This argument is

17   largely foreclosed by our decision in Jian Hui Shao v.

18   Mukasey, 546 F.3d 138 (2d Cir. 2008) .     Chen argues that the

19   agency failed to consider adequately the evidence she

20   presented; but we “presume that [the agency] has taken into

21   account all of the evidence before [it], unless the record

22   compellingly suggests otherwise.” Xiao Ji Chen v. US Dep’t.


                                   4
1    Of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006) Chen

2    advances no argument that would compel the conclusion that

3    the IJ ignored any of the evidence she submitted.

4           Chen’s argument concerning the Aird Affidavit is

5    unexhausted.    See Foster v. INS, 376 F.3d 75, 78 (2d Cir.

6    2004); see also Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

7    104, 119-20 (2d Cir. 2007).      In any event,   the BIA and this

8    Court have considered similar versions of the Aird

9    Affidavit, time and again finding it “inadequate to

10   establish the existence of an official policy of forced

11   sterilization . . . and thus insufficient to show that the

12   applicants were likely to face forced sterilization if

13   returned to China.”      See Jin Xiu Chen v. U.S. Dep’t of

14   Justice, 468 F.3d 109, 110 (2d Cir. 2006).

15   III.       Due Process

16          Chen argues that the IJ’s conduct was prejudicial and

17   denied her a fair hearing.      However, Chen does not

18   demonstrate that the IJ’s conduct here in any way denied her

19   a full and fair opportunity to present her claims. See Li

20   Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d

21   Cir. 2006); cf. Islam v. Gonzales, 469 F.3d 53, 55-56 (2d

22   Cir. 2006).


                                      5
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                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11




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