Opinion
No. 09-0236-ag.
December 21, 2009.
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.
Feng Li, Law Office of Fengling Liu, New York, NY, for Petitioner.
Tony West, Assistant Attorney General, Civil Division; Linda S. Wernery, Assistant Director; Lindsay B. Glauner, Trial Attorney, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: JOSEPH M. MCLAUGHLIN, JOSÉ A. CABRANES and RICHARD C. WESLEY, Circuit Judges.
SUMMARY ORDER
Quan Luo Chen, a native and citizen of the People's Republic of China, seeks review of a December 19, 2008 order of the BIA, affirming the April 24, 2007 decision of Immigration Judge ("IJ") Elizabeth A. Lamb, who denied Chen's application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Quan Luo Chen, No. A079 399 694 (B.I.A. Dec. 19, 2008), aff'g No. A079 399 694 (Immig. Ct. N.Y. City Apr. 24, 2007). We assume the parties' familiarity with the underlying facts and procedural history in this case.
We review the IJ's decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126-27 (2d Cir. 2007); Salimatou Bah v. Mukasey, 529 F.3d 99, 110-11 (2d Cir. 2008).
Here, substantial evidence supports the IJ's adverse credibility determination, which was based on: (1) Chen's inconsistent testimony as to whether he had proof of his wife's abortion; (2) Chen's evasive demeanor; (3) a response from Chinese officials stating that Chen's wife's abortion certificate is fraudulent; and (4) Chen's failure to submit any evidence rebutting that response. Because Chen does not challenge the IJ's reliance upon his demeanor and his failure to provide rebuttal evidence, those findings stand as valid bases for the IJ's adverse credibility determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir. 2008). Although Chen asserts that his being upset and nervous explained his inconsistent testimony, no reasonable factfinder would have been compelled to credit that explanation. See Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir. 2005); see also Yun-Zui Guan v. Gonzales, 432 F.3d 391, 397 n. 6, 399 n. 8 (2d Cir. 2005). Finally, we have found that a response from the alleged persecuting government "may be of limited probative value" because the government may have "ulterior motive[s]." See Zhen Nan Lin v. Dep't of Justice, 459 F.3d 255, 266 (2d Cir. 2006). However, given the other discrepancies in the record, the IJ was entitled to give weight to the Chinese government's statement that the abortion certificate is fraudulent, particularly because Chen failed to provide rebuttal evidence. See Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (finding that the weight afforded to the applicant's evidence in immigration proceedings lies largely within the discretion of the agency).
Because substantial evidence supports the IJ's adverse credibility determination, see Dong Gao, 482 F.3d at 126, Chen's claims for asylum, withholding of removal, and CAT relief each fail because the only evidence that he was likely to be persecuted or tortured depended upon his credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
We reject the government's argument that Chen waived any challenge to the agency's denial of CAT relief. In his brief, Chen notes that the IJ denied CAT relief based on her adverse credibility determination, and challenged that determination.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the temporary stay of removal that the Court previously granted in this petition is VACATED. To the extent petitioner requests a further stay, that request is denied as moot.