         08-2782-ag
         Chen v. Holder
                                                                                        BIA
                                                                              Hladylowycz, IJ
                                                                                 A79 092 310
                               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 January, two thousand ten.
 5
 6       PRESENT:
 7                 ROSEMARY S. POOLER,
 8                 ROBERT D. SACK,
 9                 DEBRA ANN LIVINGSTON,
10                              Circuit Judges.
11       _______________________________________
12
13       HUANG CHEN,
14                Petitioner,
15
16                        v.                                    08-2782-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., ATTORNEY GENERAL, *
19                Respondent.
20       _______________________________________
21
22       FOR PETITIONER:                Yee Ling Poon, Robert Duk-Hwan Kim,
23                                      New York, New York.




                      *
                   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 RESPONDENT:        Gregory G. Katsas, Assistant
2                           Attorney General, Francis W. Fraser,
3                           Senior Litigation Counsel, T. Bo
4                           Stanton, Attorney, Office of
5                           Immigration Litigation, Civil
6                           Division, United States Department
7                           of Justice, Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

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

12   review is DENIED in part and DISMISSED in part.

13       Petitioner Huang Chen, a native and citizen of the

14   People’s Republic of China, seeks review of a May 12, 2008

15   order of the BIA affirming the April 24, 2002 decision of

16   Immigration Judge (“IJ”) Roxanne Hladylowycz, denying his

17   applications for asylum, withholding of removal, and relief

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

19   Chen, No. A79 092 310 (B.I.A. May 12, 2008), aff’g No. A79

20   092 310 (Immig. Ct. N.Y. City, Apr. 24, 2002).     We assume

21   the parties’ familiarity with the underlying facts and

22   procedural history of the case.

23       As an initial matter, because Chen failed to challenge

24   the IJ’s denial of his CAT claim before the BIA, we lack

25   jurisdiction to consider this unexhausted argument.     See

26   8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119

                                  2
1    (2d Cir. 2006) (citing Beharry v. Ashcroft, 329 F.3d 51, 59

2    (2d Cir. 2003)).   The petition for review is dismissed to

3    that extent.

4        When the BIA adopts the decision of the IJ and

5    supplements the IJ’s decision, this Court reviews the

6    decision of the IJ as supplemented by the BIA.     See Yan Chen

7    v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).      We review

8    the agency’s factual findings, including adverse credibility

9    determinations, under the substantial evidence standard,

10   treating them as “conclusive unless any reasonable

11   adjudicator would be compelled to conclude to the contrary.”

12   8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519

13   F.3d 90, 95 (2d Cir. 2008).   However, we will vacate and

14   remand for new findings if the agency’s reasoning or its

15   fact-finding process was sufficiently flawed.    See Cao He

16   Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.

17   2005).   We review de novo questions of law and the

18   application of law to undisputed fact.   See, e.g., Salimatou

19   Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

20       Upon our review of the record, we conclude that the

21   agency’s adverse credibility determination is supported by

22   substantial evidence.   See Yuanliang Liu v. U.S. Dep’t of


                                   3
1    Justice, 455 F.3d 106, 110-111 (2d Cir. 2006).    The agency

2    found several aspects of Chen’s testimony implausible; for

3    example, Chen claimed that he did not know the legal age to

4    marry when he had testified that he and his girlfriend had

5    attempted to marry but were denied.    While Chen offers

6    explanations for the implausibilities, such explanations –

7    even if rational – “do not defeat a finding that the account

8    is implausible.”    See Ying Li v. BCIS, 529 F.3d 79, 83 (2d

9    Cir. 2008).    Indeed, “when an adverse credibility finding is

10   based partly or entirely on implausibility, we review the

11   entire record, not whether each unusual or implausible

12   feature of the account can be explained or rationalized.”

13   Id. at 82.    Because our review of an IJ’s adverse

14   credibility finding is “especially limited and highly

15   deferential,” id. at 81, substantial evidence supports the

16   IJ’s finding where, taken as a whole, the IJ could conclude

17   that the picture that emerged from Chen’s story was

18   implausible, see id. at 82-83.

19       We need not address Chen’s “other resistance” claim in

20   determining whether he is eligible for asylum and

21   withholding of removal because the adverse credibility

22   determination is dispositive in this case.    See Paul v.


                                    4
1    Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Wu Biao Chen v.

2    INS, 344 F.3d 272, 275 (2d Cir. 2003).

3        For the foregoing reasons, the petition for review is

4    DENIED in part and DISMISSED in part.    Having completed our

5    review, we DISMISS the petitioner's pending motion for a

6    stay of removal as moot.

 7                              FOR THE COURT:
 8                              Catherine O’Hagan Wolfe, Clerk
 9
10
11




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