         09-2891-ag
         Chen v. Holder
                                                                                         BIA
                                                                            Gordon-Uruakpa, IJ
                                                                                A094 816 786
                           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 11 th day of January, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                        Chief Judge,
 9                JOSEPH M. McLAUGHLIN,
10                GERARD E. LYNCH,
11                        Circuit Judges.
12       ______________________________________
13
14       YUAN ZHI CHEN,
15                Petitioner,
16
17                        v.                                    09-2891-ag
18                                                              NAC
19       ERIC H. HOLDER, JR.,
20       UNITED STATES ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23       FOR PETITIONER:        Norman Kwai Wing Wong, New York, New
24                              York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; David V. Bernal, Assistant
28                                     Director; Ana T. Zablah-Monroe,
29                                     Trial 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 in part and DISMISSED in part.

5        Yuan Zhi Chen, a native and citizen of the People’s

6    Republic of China, seeks review of a June 16, 2009 order of

7    the BIA affirming the September 10, 2007 decision of

8    Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa, which

9    denied Chen’s application for asylum as untimely, and

10   rejected his withholding of removal and Convention Against

11   Torture (“CAT”) claims on the merits.    In re Yuan Zhi Chen

12   No. A094 816 786 (BIA June 16, 2009), aff’g No. A094 816 786

13   (Immig. Ct. N.Y. City Sept. 10, 2007).     We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history in this case.

16       Under the circumstances of this case, we review the

17   IJ’s decision including the portions not explicitly

18   discussed by the BIA.   Yun-Zui Guan v. Gonzales, 432 F.3d

19   391, 394 (2d Cir. 2005).   The applicable standards of review

20   are established.   See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin

21   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); Salimatou Bah

22   v. Mukasey, 529 F.3d 99, 104 (2d Cir. 2008).



                                   2
1           As a preliminary matter, we do not have jurisdiction

2    over petitioner’s claim that the agency erred in

3    pretermitting his asylum application as untimely.    See

4    8 U.S.C. § 1158(a)(3).    Although we retain jurisdiction to

5    review Constitutional claims and questions of law, see

6    8 U.S.C. § 1252(a)(2)(D), petitioner has raised no such

7    claims.    See Saloum v. USCIS, 437 F.3d 238 (2d Cir. 2006)

8    (stating that a petitioner may not create the jurisdiction

9    that Congress chose to remove simply by cloaking an abuse of

10   discretion argument in constitutional garb); Xiao Ji Chen v.

11   U.S. Dep’t of Justice, 471 F.3d 315, 328-29 (2d Cir. 2006)

12   (stating that a question of law is not implicated “when the

13   petition for review essentially disputes the correctness of

14   the IJ’s fact-finding or the wisdom of his exercise of

15   discretion”).    We dismiss the petition for review to that

16   extent.

17          With respect to petitioner’s claim for withholding of

18   removal, substantial evidence supports the agency’s adverse

19   credibility determination.    See Xiu Xia Lin, 534 F.3d at

20   167.    Under the REAL ID Act, which applies to petitioner’s

21   application for relief, “an IJ may rely on any inconsistency

22   or omission in making an adverse credibility determination

23   as long as the ‘totality of the circumstances’ establishes

                                    3
1    that an asylum applicant is not credible.”     Id.   Here, the

2    IJ reasonably relied on petitioner’s omission from his

3    asylum application of any claim that he was detained and

4    lost his job on account of his resistance to China’s family

5    planning policy.   Although petitioner argues that he failed

6    to include this information in his application because it

7    was not legally relevant until after we issued our decision

8    in Shi Liang Lin v. U.S. Department of Justice, 494 F.3d 296

9    (2d Cir. 2007), no reasonable fact finder would be compelled

10   to credit that explanation.   See Majidi v. Gonzales, 430

11   F.3d 77, 80-81 (2d Cir. 2005).    Indeed, the IJ reasonably

12   surmised that petitioner had augmented his earlier claim in

13   order to tailor it to fit the change in law.     See Cheng Tong

14   Wang v. Gonzales, 449 F.3d 451, 453 (2d Cir. 2006) (finding

15   that the applicant’s omission of his wife’s forced

16   sterilization was material to the applicant’s claim

17   irrespective of the fact that it occurred at a time when

18   that sterilization would not have been, on its own,

19   sufficient to establish asylum eligibility, because the

20   basis for the applicant’s original asylum claim was his

21   opposition to China’s family planning program).

22   Accordingly, the IJ’s adverse credibility determination was

23   supported by substantial evidence.    See 8 U.S.C.


                                   4
1    §§ 1158(b)(1)(B)(iii), 1252(b)(4)(B).

2        To the extent petitioner’s withholding of removal and

3    CAT claims were based on the same factual predicate, the

4    agency’s denial of CAT relief was proper.     See Paul v.

5    Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).     Insofar as

6    petitioner’s CAT claim was based on his alleged illegal

7    departure, it is well-settled that the agency does not err

8    in finding that a petitioner is not “entitled to CAT

9    protection based solely on the fact that he is part of the

10   large class of persons who have illegally departed China.”

11   See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160

12   (2d Cir. 2005).

13       For the foregoing reasons, the petition for review is

14   DENIED in part and DISMISSED in part.   As we have completed

15   our review, any stay of removal that the Court previously

16   granted in this petition is VACATED, and any pending motion

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

18   Any pending request for oral argument in this petition is

19   DENIED in accordance with Federal Rule of Appellate

20   Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

21
22                              FOR THE COURT:
23                              Catherine O’Hagan Wolfe, Clerk
24
25
26                              By:___________________________




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