11-1630-ag
   Chen v. Holder
                                                                                  BIA
                                                                             Weisel, IJ
                                                                          A088 782 874
                     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 9th day of February, two thousand twelve.

   PRESENT:
            DENNIS JACOBS,
                 Chief Judge,
            PETER W. HALL,
            GERARD E. LYNCH,
                 Circuit Judges.
   _______________________________________

   XIAOFENG CHEN,
            Petitioner,

                    v.                                    11-1630-ag
                                                          NAC
   ERIC H. HOLDER JR., UNITED STATES
   ATTORNEY GENERAL,
            Respondent.
   _______________________________________

   FOR PETITIONER:                John Z. Zhang, New York, New York.

   FOR RESPONDENT:                Tony West, Assistant Attorney
                                  General; M. Jocelyn Lopez Wright,
                                  Senior Litigation Counsel; Melissa
                                  K. Lott, Trial 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.

    Xiaofeng Chen, a native and citizen of the People’s

Republic of China, seeks review of a April 21, 2011, order

of the BIA, affirming the April 8, 2009, decision of

Immigration Judge (“IJ”) Robert Weisel, which denied her

application for asylum, withholding of removal, and relief

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

Xiaofeng Chen, No. A088 782 874 (B.I.A. Apr. 21, 2011),

aff’g No. A088 782 874 (Immig. Ct. N.Y. City Apr. 8, 2009).

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

    Because the BIA adopted and affirmed the IJ’s decision,

we review the two decisions in tandem.   Yanqin Weng v.

Holder, 

, 513 (2d Cir. 2009). The “substantial

evidence” standard of review applies, Islam v. Gonzales, 

, 55 (2d Cir. 2006), and we uphold the IJ’s factual

findings if the are supported by “reasonable, substantial

and probative evidence in the record.”   Lin Zhong v. US

Dep’t of Justice, 

, 116 (2d Cir. 2007) (internal

quotation marks omitted). See also 8 U.S.C. § 1252(b)(4)(B).

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    For asylum applications governed by the REAL ID Act,

such as this one, 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).

Analyzed under the REAL ID Act, substantial evidence

supports the agency’s adverse credibility determination.

    In finding Chen not credible, the agency reasonably

relied on inconsistencies between Chen’s testimony and that

of her witness with regard to the date on which Chen joined

the China Democratic Party (“CDP”) in the United States,

whether Chen authored an article that was published on the

CDP’s website in July 2007, the frequency of visits from

Chinese officials to Chen’s family’s home in China, and the

stated purpose of a March 2009 political demonstration in

which Chen participated on behalf of the CDP.   Although Chen

argues that these inconsistencies were too minor to support

an adverse credibility determination, “an IJ may rely on any

inconsistency or omission in making an adverse credibility

determination as long as the ‘totality of the circumstances’


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establishes that an asylum applicant is not credible.”        Xiu

Xia Lin v. Mukasey, 

, 167 (2d Cir.

2008)(emphasis in original).

    Furthermore, Chen’s argument that the IJ erred in

failing to solicit an explanation for the inconsistencies

between her testimony and that of her witness is without

merit.   While it is true that an IJ may not rest an adverse

credibility finding on a non-dramatic discrepancy without

first putting a petitioner on notice and offering an

opportunity to explain it, see Ming Shi Xue v. BIA, 

, 125 (2d Cir. 2006), the agency need not give such

notice and opportunity where, as here, it relied on dramatic

discrepancies that went to the very heart of Chen’s claim

for asylum.   

the agency reasonably found,

the discrepancies between Chen’s testimony and that of her

witness were not minor and did, in fact, relate to the heart

of her claim that she feared persecution if returned to

China on account of her CDP activities in the United States,

as they directly pertained to the date on which she became a

member of the CDP, and the extent of her involvement in

political activities that evinced her opposition to the

Chinese regime.     Accordingly, the IJ was not required to


                                4
specifically request an explanation for these

inconsistencies: where the “inconsistency is ‘dramatic’ or

obvious on its face . . . the petitioner can be assumed to

be aware-without being told-of the need to explain it.”

Ming Shi 

n.13.

    We therefore conclude that the IJ’s adverse credibility

determination is supported by substantial evidence.   See Xiu

Xia 

. This determination is

dispositive of both Chen’s claims for asylum and withholding

of removal, as both claims are based on the same factual

predicate.   See Paul v. Gonzales, 

, 156 (2d Cir.

2006).

    For the foregoing reasons, the petition for review is

DENIED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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