    09-2589-ag
    Chen v. Holder
                                                                                   BIA
                                                                             Elstein, IJ
                                                                          A096 241 859
                      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.


         At a stated term of the United States Court of                 Appeals
    for the Second Circuit, held at the Daniel Patrick                 Moynihan
    United States Courthouse, 500 Pearl Street, in the                 City of
    New York, on the 25 th day of February, two thousand               ten.

    PRESENT:
             ROBERT D. SACK,
             RICHARD C. WESLEY,
             PETER W. HALL,
                  Circuit Judges.
    _______________________________________

    FENG CHEN,
             Petitioner,

                     v.                                    09-2589-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Farah Loftus, Century City,
                                  California.
FOR RESPONDENT:        Tony West, Assistant Attorney
                       General, Civil Division; Richard M.
                       Evans, Assistant Director; Sada
                       Manickam, Trial Attorney, Office of
                       Immigration Litigation, United
                       States Department of Justice,
                       Washington, D.C.

     UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.

     Feng Chen, a native and citizen of the People’s
Republic of China, seeks review of a May 29, 2009 order of
the BIA, affirming the July 19, 2007 decision of Immigration
Judge (“IJ”) Annette S. Elstein, which denied her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Feng
Chen, No. A096 241 859 (B.I.A. May 29, 2009), aff’g No.
A096 241 859 (Immig. Ct. N.Y. City July 19, 2007). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.

     Under the circumstances of this case, we review both
the BIA’s and the IJ’s decisions. See Yun-Zui Guan v.
Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
The applicable standards of review are well-established.
See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey,
519 F.3d 90, 95 (2d Cir. 2008).

     As a preliminary matter, Chen ignores altogether the
fact that the IJ pretermitted her asylum application as
untimely. Thus, that finding stands as a valid basis for
the denial of that relief. See 8 U.S.C. § 1158(a)(2)(B).

     With respect to Chen’s application for withholding of
removal, although it may have been an error for the IJ to
base her adverse credibility determination, in part, on
Chen’s submission of fraudulent documents without first
making an explicit finding that Chen knew the documents to
be fraudulent, see Corovic, 519 F.3d at 97-98, substantial
evidence remains to support the agency’s adverse credibility



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determination. * See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 339 (2d Cir. 2006) (finding that the Court
need not remand, despite errors in the agency’s decision,
where doing would be futile, i.e., when the Court can
“‘confidently predict’ that the agency would reach the same
decision absent the errors that were made.”).

     The IJ reasonably relied on discrepancies between
Chen’s hearing testimony and her asylum application,
including inconsistencies in her account of the events
following her alleged forced abortion and whether she worked
in China after her abortion. The IJ did not err in
declining to credit Chen’s explanations for those
discrepancies, see Majidi v. Gonzales, 430 F.3d 77, 80-81
(2d Cir. 2005), or in concluding that their cumulative
effect was to undermine Chen’s overall credibility. See Tu
Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006).
Furthermore, the IJ reasonably relied on Chen’s evasive
demeanor in finding her not credible. See Majidi, 430 F.3d
at 81.

     Ultimately, because a reasonable fact-finder would not
be compelled to conclude to the contrary, the IJ’s adverse
credibility determination was supported by substantial
evidence. See Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d
Cir. 2007) (per curiam). To the extent Chen’s claim was
based on her fear of persecution under China’s family
planning policy, the agency’s denial of Chen’s application
for withholding of removal and CAT relief was proper. See
Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Wu Biao
Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003) (per curiam).
In addition, because Chen failed to present any evidence
that she would more likely than not be tortured upon her
return to China because of her illegal departure, the


      *
       In arguing that the IJ erred in basing her
  credibility determination on Chen’s submission of
  fraudulent documents without first finding that Chen knew
  that the documents were fraudulent, Chen relies entirely
  on Ninth Circuit precedent. Indeed, Chen cites not a
  single case from this Circuit in her brief. Petitioner’s
  counsel is reminded that cases from other circuits are
  not binding precedent in this Court.

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agency’s denial of her claim for CAT relief on that basis
was also proper. See Mu Xiang Lin v. U.S. Dep’t of Justice,
432 F.3d 156, 159-60 (2d Cir. 2005).

     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34(b).

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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