08-4677-ag
    Chen v. Holder
                                                                                  BIA
                                                                            Abrams, IJ
                                                                           A99 076 361
                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         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 18 th day of February, two thousand               ten.

    PRESENT:
              GUIDO CALABRESI,
              ROSEMARY S. POOLER,
              ROBERT A. KATZMANN,
                           Circuit Judges.
    _____________________________________

    ZHONG HUI CHEN,
             Petitioner,

                     v.                                    08-4677-ag
                                                           NAC
    ERIC H. HOLDER, JR., ATTORNEY GENERAL, *
             Respondent.
    ______________________________________

    FOR PETITIONER:               Lee Ratner, Law Offices of Michael
                                  Brown, New York, NY.




             *
            Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
    Attorney General Eric H. Holder, Jr., is automatically substituted for
    former Attorney General Michael B. Mukasey as respondent in this case.
FOR RESPONDENT:        Michael F. Hertz, Acting Assistant
                       Attorney General; Mary Jane Candaux,
                       Assistant Director; Achiezer
                       Guggenheim, Attorney, Office of
                       Immigration Litigation, Civil
                       Division, U.S. Department of
                       Justice, Washington, D.C.


    UPON DUE CONSIDERATION of this petition for review of a

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

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

review is DENIED.

    Zhong Hui Chen, a native and citizen of the People’s

Republic of China, seeks review of an August 28, 2008 order

of the BIA affirming the November 8, 2006 decision of

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

application for asylum, withholding of removal, and relief

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

Hui Chen, No. A99 076 361 (B.I.A. Aug. 28, 2008), aff’g No.

A99 076 361 (Immig. Ct. N.Y. City Nov. 8, 2006).   We assume

the parties’ familiarity with the underlying facts and

procedural history of this case.

    When the BIA affirms the IJ’s decision in all respects

but one, we review the IJ’s decision as modified by the BIA

decision, i.e., “minus the single argument for denying

relief that was rejected by the BIA.” Xue Hong Yang v. U.S.

                             2
Dep’t of Justice, 

, 522 (2d Cir. 2005).     Here,

where the BIA noted the IJ’s error as to a perceived

inconsistency in the record, but found that the adverse

credibility determination was otherwise supported by the

record, we review the IJ’s decision minus that erroneous

finding.   

the agency’s factual findings,

including adverse credibility findings, under the

substantial evidence standard.     8 U.S.C. § 1252(b)(4)(B);

see also Corovic v. Mukasey, 

, 95 (2d Cir. 2008).

    For asylum applications governed by the amendments made

to the Immigration and Nationality Act (“INA”) by the REAL

ID Act of 2005, the agency may, considering the totality of

the circumstances, base a credibility finding on an asylum

applicant’s demeanor, the plausibility of his or her

account, and inconsistencies in his or her statements,

without regard to whether they go “to the heart of the

applicant’s claim.”    8 U.S.C. § 1158(b)(1)(B)(iii).   We

“defer . . . to an IJ’s credibility determination unless,

from the totality of the circumstances, it is plain that no

reasonable fact-finder could make such an adverse

credibility ruling.”    Xiu Xia Lin v. Mukasey, 

,

167 (2d Cir. 2008).


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    Here, the IJ properly identified an internal

inconsistency in Chen’s testimony where he initially claimed

never to have left his uncle’s village when he was in hiding

there, then indicated that he had left on one occasion for a

doctor’s appointment, and again at the instruction of a

snakehead.    These statements are clearly inconsistent, and

Chen waives any challenge to this finding in his brief to

this Court.    See Yueqing Zhang v. Gonzales, 

,

545 n.7 (2d Cir. 2005).

    The IJ also found that during his testimony Chen

“always was evasive, putting his head down, not answering

questions, not looking at anyone.”     We accord to an IJ’s

findings relating to an applicant’s demeanor “particular

deference” because the IJ’s ability to observe the witness’s

demeanor places him in the best position to evaluate whether

apparent problems in the witness’s testimony suggest a lack

of credibility.    Shu Wen Sun v. BIA, 

, 381 (2d

Cir. 2007) (quoting Jin Chen v. U.S. Dep’t of Justice, 

, 113 (2d Cir. 2005)).     We find no reason not to

accord deference to the IJ’s demeanor finding in this case.

    Finally, in finding Chen not credible, the IJ relied on

his failure to corroborate his claims that he protested the


                               4
family planning policy and that he went into hiding at his

uncle’s house before he fled China.     Such findings where

proper where Chen’s failure to corroborate his testimony

made him unable to rehabilitate testimony that had already

been called into question.     See Xiao Ji Chen v. U.S. Dep’t

of Justice, 

, 341 (2d Cir. 2006).

    Taken together, the internal inconsistencies in Chen’s

testimony, his evasive demeanor, and his failure to

corroborate certain aspects of his claim served to undermine

his credibility, see 8 U.S.C. § 1158(b)(1)(B)(iii), and the

IJ’s adverse credibility determination thus was supported by

substantial evidence, 8 U.S.C. § 1252(b)(4)(B); see also

.     Accordingly, the agency’s denial

of Chen’s application for asylum was proper.

    Finally, inasmuch as Chen based his withholding of

removal and CAT claims on the same factual predicate as his

asylum claim, those claims necessarily fail.     See Paul v.

Gonzales, 

, 156 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

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

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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