         09-3371-ag
         Chen v. Holder
                                                                                           BIA
                                                                                      Nelson, IJ
                                                                                   A094 800 150
                               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 22 nd day of June, 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       JIAN CHEN,
15                Petitioner,
16
17                        v.                                      09-3371-ag
18                                                                NAC
19       ERIC H. HOLDER, Jr., U.S. ATTORNEY
20       GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                 Henry Zhang, New York, New York.
25
26       FOR RESPONDENT:                 Tony West, Assistant Attorney
27                                       General, Shelley R. Goad, Assistant
28                                       Director, Dalin R. Holyoak, Trial
29                                       Attorney, Office of Immigration
30                                       Litigation, Civil Division, United
31                                       States Department of Justice,
32                                       Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    review is DENIED.

5        Petitioner Jian Chen, a native and citizen of the

6    People’s Republic of China, seeks review of a July 31, 2009,

7    order of the BIA affirming the December 5, 2007, decision of

8    Immigration Judge (“IJ”) Barbara A. Nelson, denying his

9    application for asylum, withholding of removal, and relief

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

11   Chen, No. A094 800 150 (B.I.A. July 31, 2009), aff’g No.

12   A094 800 150 (Immig. Ct. N.Y. City Dec. 5, 2007).     We assume

13   the parties’ familiarity with the underlying facts and

14   procedural history of the case.

15       Under the circumstances of this case, we review both

16   the BIA’s and IJ’s opinions.     See Xue Hong Yang v. U.S.

17   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).     The

18   applicable standards of review are well-established.     See

19   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

20   510, 513 (2d Cir. 2009).

21       Substantial evidence supports the agency’s adverse

22   credibility determination.     As the IJ noted: (1) Chen failed

23   to assert, either in his credible fear interviews or his

                                     2
1    first supplemental statement, that he had a physical

2    altercation with public security officials and that one of

3    the officials was injured; and (2) Chen testified that he

4    received medical treatment at his home, but a letter from

5    his mother made no such assertion.   The agency was entitled

6    to rely on these inconsistencies to find Chen not credible.

7    See 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v.

8    Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).    Additionally,

9    there is no merit to Chen’s claim that the IJ failed to

10   provide him an opportunity to explain those discrepancies.

11   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

12       The IJ also reasonably found that several aspects of

13   Chen’s testimony were implausible.   For example, Chen

14   claimed that after he was beaten unconscious for a day, he

15   walked half an hour to the hospital to visit his girlfriend.

16   Additionally, Chen testified that upon seeing him bandaged,

17   his girlfriend had no reaction to his injuries.    While Chen

18   offers explanations as to why his testimony was not

19   implausible, such explanations – even if rational – “do not

20   defeat a finding that the account is implausible.”     See Ying

21   Li v. BCIS, 529 F.3d 79, 83 (2d Cir. 2008).

22       Moreover, there is no merit to Chen’s argument that his

23   proceedings were fundamentally unfair.   To the contrary, the


                                  3
1    IJ afforded Chen a meaningful opportunity to be heard.          Li

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

3    Cir. 2006).     The IJ has broad discretion to determine the

4    scope of questions asked on redirect, see United States v.

5    Diaz, 176 F.3d 52, 80 (2d Cir. 1999), and Chen failed to

6    demonstrate how the IJ’s limitation of his testimony

7    prejudiced the outcome of his case, see Garcia-Villeda v.

8    Mukasey, 531 F.3d 141, 149 (2d Cir. 2008).

9        Accordingly, considering the totality of the

10   circumstances and all relevant factors, the IJ’s adverse

11   credibility determination was supported by substantial

12   evidence.     See 8 U.S.C. § 1158(b)(1)(B)(iii).    Since the

13   only evidence of a threat to Chen’s life or freedom depended

14   upon his credibility, the adverse credibility determination

15   in this case necessarily precludes success on his claims for

16   asylum and withholding of removal.       See Paul v. Gonzales,

17   444 F.3d 148, 156 (2d Cir. 2006).       Finally, we lack

18   jurisdiction to consider Chen’s unexhausted challenge to the

19   IJ’s denial of his CAT claim.       See 8 U.S.C. § 1252(d)(1).

20       For the foregoing reasons, the petition for review is

21   DENIED.     As we have completed our review, any stay of

22   removal that the Court previously granted in this petition



                                     4
1    is VACATED, and any pending motion for a stay of removal in

2    this petition is DISMISSED as moot. Any pending request for

3    oral argument in this petition is DENIED in accordance with

4    Federal Rule of Appellate Procedure 34(a)(2), and Second

5    Circuit Local Rule 34.1(b).

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




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