         10-3844-ag
         Pei v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A099 037 679
                          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 24th day of April, two thousand Twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                ROSEMARY S. POOLER,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _______________________________________
12
13       YINGZI PEI,
14                Petitioner,
15
16                       v.                                     10-3844-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Jed S. Wasserman, New York, NY
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Christopher C. Fuller,
27                                     Senior Litigation Counsel; Glen T.
28                                     Jaeger, Trial Attorney, Office of
29                                     Immigration Litigation, U.S.
30                                     Department of Justice, Washington
31                                     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.

 5       Yingzi Pei, a native and citizen of the People’s

 6   Republic of China, seeks review of the September 8, 2010,

 7   order of the BIA affirming the February 27, 2009, decision

 8   of Immigration Judge (“IJ”) Steven R. Abrams denying her

 9   application for asylum, withholding of removal, and relief

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

11   Pei, No. A099 037 679 (B.I.A. Sept. 8, 2010), aff’g No. A099

12   037 679 (Immig. Ct. N.Y. City Feb. 27, 2009).   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 both

16   the BIA’s and IJ’s opinions.   See Yun-Zui Guan v. Gonzales,

17   432 F.3d 391, 394 (2d Cir. 2005)(per curiam).   The

18   applicable standards of review are well-established.   See 8

19   U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d

20   162, 165-66 (2d Cir. 2008) (per curiam).

21       The agency’s adverse credibility determination is based

22   on substantial evidence given inconsistencies among Pei’s

23   testimony, written application, and record evidence.   See

                                    2
 1   8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534

 2   F.3d at 167.   For example, although Pei testified that she

 3   was arrested in China in 2005 and fled that country for the

 4   United States in 2007, the record contains an application

 5   for adjustment of status that was signed by Pei in July

 6   2005, and indicated that she arrived in the United States in

 7   1999.   Pei further testified inconsistently regarding

 8   whether and when she took birth control pills prescribed by

 9   family planning officials.   Pei also omitted from her asylum

10   application her assertion at her hearing that she had been

11   beaten in China for her church attendance.     See Xiu Xia Lin,

12   534 F.3d at 164, 166 n.3 (recognizing that “[a]n

13   inconsistency and an omission are, for [credibility]

14   purposes, functionally equivalent”).   Moreover, a reasonable

15   fact finder would not be compelled to credit Pei’s

16   explanations for these inconsistencies.   See Majidi v.

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

18       Given these inconsistencies, the agency’s adverse

19   credibility determination is supported by substantial

20   evidence, 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

21   F.3d at 167, and provided an adequate basis for denying

22   Pei’s application for asylum, withholding of removal, and

23   CAT relief, see Paul v. Gonzales, 444 F.3d 148, 155-57 (2d

                                   3
 1   Cir. 2006) (noting that when the same factual assertions are

 2   needed for asylum, withholding of removal, and CAT relief,

 3   an adverse credibility finding regarding those assertions

 4   forecloses all forms of relief).

 5       Although Pei argues that she established her

 6   eligibility for CAT relief based on her illegal departure,

 7   as the government notes, she did not raise this argument

 8   before the agency and it is thus unexhausted.       Accordingly,

 9   we decline to consider this issue.       See Lin Zhong v. U.S.

10   Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted with respect to

14   this petition is VACATED, and any pending motion for a stay

15   of removal is DENIED as moot.       Any pending request for oral

16   argument is DENIED in accordance with Federal Rule of

17   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

18   34.1(b).

19                                FOR THE COURT:
20                                Catherine O’Hagan Wolfe, Clerk
21
22




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