         10-1620-ag
         Chen v. Holder
                                                                                       BIA
                                                                                 Morace, IJ
                                                                               A099 939 752
                           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 15th day of April, two thousand eleven.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                RICHARD C. WESLEY,
10                    Circuit Judges.
11       ______________________________________
12
13       MIN HUI CHEN,
14                Petitioner,
15
16                        v.                                    10-1620-ag
17                                                              NAC
18       ERIC H. HOLDER, JR.,
19       UNITED STATES ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Corey Lee, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; David V. Bernal, Assistant
27                                     Director; Liza S. Murcia, Attorney,
28                                     Office of Immigration Litigation,
29                                     United States Department of Justice,
30                                     Washington, D.C.
31
 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       Min Hui Chen, a native and citizen of the People’s

 6   Republic of China, seeks review of an April 2, 2010, order

 7   of the BIA affirming the August 18, 2008, decision of

 8   Immigration Judge (“IJ”) Philip Morace, denying Chen’s

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).     In re Minhui

11   Chen No. A099 939 752 (BIA Apr. 2, 2010), aff’g No. A099 939

12   752 (Immig. Ct. N.Y. City Aug. 18, 2008).     We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we review the

16   IJ’s decision including the portions not explicitly

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

18   391, 394 (2d Cir. 2005); Zaman v. Mukasey, 514 F.3d 233, 237

19   (2d Cir. 2008).     The applicable standards of review are

20   well-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       Because Chen has challenged only purely factual

 2   determinations and the agency’s exercise of discretion in

 3   pretermitting her asylum application, we lack jurisdiction

 4   to review that claim and dismiss her petition for review to

 5   the extent it challenges the pretermission of her asylum

 6   application.   See 8 U.S.C. § 1158(a)(3); See also Xiao Ji

 7   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 326-27 (2d Cir.

 8   2006); see also Li Hua Lin v. U.S. Dep’t of Justice, 453

 9   F.3d 99, 104-05 (2d Cir. 2006).   Chen’s argument that her

10   change in personal circumstances constituted an exception to

11   the one year filing deadline is unexhausted.   See Lin Zhong

12   v. U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d Cir. 2007)

13   (describing the issue exhaustion requirement as an

14   “affirmative defense subject to waiver”).

15       We deny the petition for review to the extent Chen

16   challenges the agency’s denial of withholding of removal and

17   CAT relief. Substantial evidence supports the agency’s

18   adverse credibility determination.   See Xiu Xia Lin, 534

19   F.3d at 167.   Under the REAL ID Act, which applies to Chen’s

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

21   or omission in making an adverse credibility determination

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


                                   3
 1   that an asylum applicant is not credible.”     Xiu Xia Lin, 534

 2   F.3d at 167; see Matter of J-Y-C-, 24 I. & N. Dec. 260, 265

 3   (BIA 2007) (finding that “the REAL ID Act no longer requires

 4   the trier of fact to find a nexus between inconsistencies

 5   and the ‘heart of the claim’”).     The IJ reasonably found

 6   Chen not credible based on: (1) her inconsistent testimony

 7   regarding her travel from China to the United States; (2) a

 8   discrepancy between the date on her wedding photograph and

 9   her testimony that she did not meet her husband until after

10   that date; (3) Chen’s implausible testimony regarding her

11   release from detention in China; and (4) Chen’s implausible

12   testimony regarding her practice of Falun Gong in the United

13   States.   See   Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d

14   Cir. 2007) (stating that so long as an IJ’s finding is

15   “tethered to record evidence, and there is nothing else in

16   the record from which a firm conviction of error could

17   properly be derived,” the Court will not disturb the

18   inherent implausibility finding).     We further find no error

19   in the IJ’s refusal to credit Chen’s explanations for the

20   inconsistencies.    See Majidi v. Gonzales, 430 F.3d 77, 80-81

21   (2d Cir. 2005).

22



                                    4
 1       Because Chen’s claims were all based on the same

 2   factual predicate, the agency’s adverse credibility

 3   determination was a proper basis for denial of both her

 4   applications for withholding of removal and CAT relief.     See

 5   8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Paul v.

 6   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

 7       For the foregoing reasons, the petition for review is

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

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

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

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

12   Any pending request for oral argument in this petition is

13   DENIED in accordance with Federal Rule of Appellate

14   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

15                              FOR THE COURT:
16                              Catherine O’Hagan Wolfe, Clerk
17
18




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