09-4881-ag
    Chen v. Holder
                                                                                  BIA
                                                                           Vomacka, IJ
                                                                          A099 612 190
                      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.


         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 2 nd day of February, two thousand eleven.

    PRESENT:
             JON O. NEWMAN,
             JOHN M. WALKER JR.,
             REENA RAGGI,
                  Circuit Judges.
    _______________________________________

    JIAN HUA CHEN,
             Petitioner,

                     v.                                    09-4881-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL; BOARD OF IMMIGRATION
    APPEALS,
             Respondents.
    _______________________________________

    FOR PETITIONER:               Henry Zhang, Zhang and Associates,
                                  P.C., New York, New York.
FOR RESPONDENTS:          Tony West, Assistant Attorney
                          General; James E. Grimes, Senior
                          Litigation Counsel; Gregory M.
                          Kelch, Attorney, Office of
                          Immigration Litigation, United
                          States Department of Justice,
                          Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is DENIED.

    Jian Hua Chen, a native and citizen of China, seeks

review of an October 28, 2009 order of the BIA affirming the

January 28, 2008 decision of Immigration Judge (“IJ”) Alan

A. Vomacka, denying her application for asylum, withholding

of removal, and relief under the Convention Against Torture

(“CAT”).     In re Jian Hua Chen, No. A099 612 190 (B.I.A. Oct.

28, 2009), aff’g No. A099 612 190     (Immig. Ct. N.Y. City

Jan. 28, 2008).     We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we review both

the IJ’s and the BIA’s opinions for the sake of

completeness.     See Jigme Wangchuck v. DHS, 

, 528

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

well-established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu



                                2
Xia Lin v. Mukasey, 

, 165-66 (2d Cir. 2008).

    Substantial evidence supports the agency’s

determination that Chen failed to provide a credible claim

for asylum.    First, we defer to the IJ’s finding that Chen’s

hesitant and unresponsive demeanor undermined her

credibility.    See Majidi v. Gonzales, 

, 81 n.1

(2d Cir. 2005); see also Shu Wen Sun v. Board of Immigration

Appeals, 

, 380-81 (2d Cir. 2007).     Second, the

IJ reasonably determined that Chen’s account of her arrival

to and exit from the Houston airport without encountering

immigration officials was implausible.    See Siewe v.

Gonzales, 

, 169 (2d Cir. 2007).     Third, the IJ

reasonably discounted Chen’s testimony and that of her

supporting witness due to internal inconsistencies.

Finally, the IJ reasonably relied on Chen’s failure to

provide corroboration that she indicated was available to

support her questionable testimony.    See Biao Yang v.

Gonzales, 

, 273 (2d Cir. 2007).      Although the

IJ’s conclusion that Chen’s abortion might have been

voluntary was speculative, see 

, no

remand is warranted because the burden of demonstrating such

past persecution rested on Chen and the totality of the


                               3
record amply supports the IJ’s finding that this claim was

not credible.   See Xiao Ji 

(explaining

that “[t]he overarching test for deeming a remand futile” is

whether the reviewing court can “confidently predict” that

the agency would reach the same decision absent the errors

that were made); see also 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

Xia 

.

    Because Chen failed credibly to demonstrate her past

violation of China’s one-child policy, her claimed fear of

future persecution based upon a professed desire to have

additional children is too speculative to compel relief.

See Jian Xing Huang v. INS, 

, 129 (2d Cir.

2005).

    Chen’s inability to show the objective likelihood of

persecution needed to make out an asylum claim means she

necessarily failed to meet the higher standard required to

succeed on a claim for withholding of removal.   See Paul v.

Gonzales, 

, 156 (2d Cir. 2006); Gomez v. INS,

, 665 (2d Cir. 1991).   Finally, we deem any

challenge to the agency’s denial of Chen’s CAT claim waived

because Chen has not pursued that issue in her brief to this

court.   See Yueqing Zhang v. Gonzales, 

, 541


                              4
n.1, 545 n.7 (2d Cir. 2005).

    For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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