         10-5009-ag
         Chen v. Holder
                                                                                       BIA
                                                                                   Chew, IJ
                                                                               A078 691 807
                               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 TO 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 24 th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                RICHARD C. WESLEY,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       Hong Chen,
14                Petitioner,
15
16                        v.                                    10-5009-ag
17                                                              NAC
18       Eric H. Holder, Jr., Attorney
19       General of the United States,
20       Immigration & Naturalization
21       Service,
22                Respondents.
23       _____________________________________
24
25       FOR PETITIONER:                Hong Chen, pro se, New York, New
26                                      York.
27
28       FOR RESPONDENTS:               Tony West, Assistant Attorney
29                                      General; Greg D. Mack, Senior
30                                      Litigation Counsel; Colin J. Tucker,
31                                      Trial Attorney, Office of
32                                      Immigration Litigation, United
33                                      States Department of Justice,
34                                      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 DISMISSED in part and DENIED in part.

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

 6   Republic of China, seeks review of a November 23, 2010,

 7   decision of the BIA affirming the November 13, 2008,

 8   decision of immigration judge (“IJ”) George T. Chew, which

 9   pretermitted his application for asylum and denied his

10   applications for withholding of removal and relief under the

11   Convention Against Torture (“CAT”).     In re Hong Chen, No.

12   A078 691 807 (B.I.A. Nov. 23, 2010), aff’g No. A078 691 807

13   (Immig. Ct. N.Y. City Nov. 13, 2008).    We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history of this case.

16       Under the circumstances of this case, we have

17   considered both the IJ’s and the BIA’s opinions “for the

18   sake of completeness.”    Zaman v. Mukasey, 514 F.3d 233, 237

19   (2d Cir. 2008) (quoting Wangchuck v. DHS, 448 F.3d 524, 528

20   (2d Cir. 2006)).    The applicable standards of review are

21   well-established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

22   v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).


                                    2
 1   A.   Asylum

 2        We lack jurisdiction to review the IJ’s decision

 3   insofar as it pretermitted Chen’s untimely asylum

 4   application because he does not present a constitutional

 5   claim or question of law with respect to that determination.

 6   See 8 U.S.C. § 1158(a)(3);   Gui Yin Liu v. INS, 508 F.3d

 7   716, 720 (2d Cir. 2007); Xiao Ji Chen v. U.S. Dep’t of

 8   Justice, 471 F.3d 315, 329-30 (2d Cir. 2006).    Accordingly,

 9   we dismiss Chen’s petition for review to this extent.       See

10   Xiao Ji Chen, 471 F.3d at 329.    However, we may review the

11   agency’s denial of withholding of removal and CAT relief.

12   See id. at 332-33.

13   B.   Withholding of Removal and CAT

14        For applications like Chen’s that are governed by the

15   REAL ID Act of 2005, the agency may, considering the

16   totality of the circumstances, base a credibility finding

17   upon an applicant’s demeanor, the plausibility of his

18   account, and inconsistencies in his statements, without

19   regard to whether they go “to the heart of the applicant’s

20   claim.”   8 U.S.C. § 1229a(c)(4)(C).   Here, the agency’s

21   adverse credibility determination is supported by

22   substantial evidence.

                                   3
 1       In finding Chen not credible, the agency reasonably

 2   relied on the fact that Chen provided inconsistent testimony

 3   about whether he had previously sought to come to the United

 4   States.   See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d

 5   Cir. 2008).   During his hearing, Chen testified that, aside

 6   from leaving China in September 2002 due to problems he

 7   encountered while practicing Falun Gong, he had never wanted

 8   to leave China at any other time, for any other reason.

 9   After Chen was presented with photographs of his former

10   fiancée, however, he admitted that he had applied for a

11   fiancé visa in 2001.     Nevertheless, he continued to maintain

12   that he had no intention of coming to the United States.

13   Because the IJ was entitled to rely on “any inaccuracies or

14   falsehoods” in Chen’s testimony “without regard to whether

15   [the] inconsistency, inaccuracy, or falsehood [went] to the

16   heart of [his] claim,”     8 U.S.C. § 1229a(c)(4)(C), the

17   agency did not err in finding him not credible based on this

18   inconsistent testimony.

19       Having found Chen’s testimony not credible, the agency

20   reasonably noted that his failure to provide corroboration

21   of his claim further undermined his credibility.     See Biao

22   Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per


                                     4
 1   curiam); Maladho Djehe Diallo v. Gonzales, 445 F.3d 624,

 2   633-34 (2d Cir. 2006).    The IJ found that Chen failed to

 3   provide corroboration or documentation with respect to his

 4   heart condition, which Chen testified had prompted him to

 5   join Falun Gong as an alternative to unsuccessful attempts

 6   at medical treatment.    Chen initially stated that he had

 7   proof of his heart condition in China, but, when asked why

 8   he did not submit that proof, he testified that he had not

 9   kept it because the events occurred many years ago.     The IJ

10   considered this explanation and did not err in finding it

11   insufficient, particularly given that Chen did not explain

12   why he changed his answer about whether he had medical

13   evidence in China or demonstrate any efforts to obtain

14   medical evidence.    See Biao Yang, 496 F.3d at 273; Majidi v.

15   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).    Ultimately,

16   because a reasonable fact-finder would not be compelled to

17   conclude to the contrary, we defer to the IJ’s adverse

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

19   167.

20          Finally, Chen argues that he qualifies for asylum and

21   withholding of removal based on his fear that Chinese

22   authorities will sterilize him because he intends to have


                                    5
1    two or more children.   We decline to consider this issue

2    because, as the Government notes, Chen did not raise this

3    issue before the agency.   See Foster v. INS, 376 F.3d 75,

4    77-78 (2d Cir. 2004).

5        For the foregoing reasons, the petition for review is

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

7    our review, the pending motion for a stay of removal in this

8    petition is DISMISSED as moot.

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