Opinion
No. 08-0110-ag NAC.
November 24, 2008.
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.
FOR PETITIONER: Tina Howe, New York, New York. FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney General, Civil Division; M. Jocelyn Lopez Wright, Assistant Director; Kristin K. Edison, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
PRESENT: HON. ROGER J. MINER, HON. SONIA SOTOMAYOR, HON. DEBRA ANN LIVINGSTON, Circuit Judges.
Petitioner Dao Quan Hong, a native and citizen of the People's Republic of China, seeks review of the December 27, 2007 order of the BIA affirming the April 10, 2006 decision of Immigration Judge ("IJ") Philip Morace, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Dao Quan Hong, No. A98 560 890 (B.I.A. Dec. 27, 2007), aff'g No. A98 560 890 (Immigr. Ct. N.Y. City Apr. 10, 2006). We assume the parties' familiarity with the underlying facts and procedural history of the case.
Where, as here, the BIA summarily affirms the decision of the IJ without issuing an opinion, this Court reviews the IJ's decision as the final agency determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). We review the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126-27 (2d Cir. 2007). For applications governed 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); see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). Thus 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, 534 F.3d at 167.
We find that the IJ's adverse credibility finding is supported by substantial evidence. In his brief to this Court, Hong does not challenge the IJ's credibility finding that he omitted in his credible fear interview any assertion that government officials went to his home in January 2005. Accordingly, any challenge to that finding is deemed waived and it stands as a proper basis for the IJ's credibility determination. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir. 2005).
Hong does not meaningfully challenge before this Court the IJ's finding that he failed to demonstrate a well-founded fear of persecution based upon China's coercive population control policy. Thus, any such argument is deemed waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir. 2005).
Moreover, as to the findings Hong does challenge, the IJ's adverse credibility determination is supported by substantial evidence. In his asylum application, Hong claimed that he returned home in January 2005 before learning that the government was looking for him. Likewise, Hong's father's and girlfriend's letters both state that Hong had returned home in January 2005 before fleeing from the government. However, Hong testified that he never made it home because he had been warned by his mother not to return home. When asked to explain this inconsistency, Hong merely stated that there was no inconsistency. No reasonable fact-finder would have been compelled to credit that explanation. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (the agency need not credit an applicant's explanations for inconsistent testimony unless those explanations would compel a reasonable fact-finder to do so).
In addition, the IJ reasonably found that the inconsistencies in Hong's airport interview, credible fear interview, asylum application, and testimony undermined his credibility. With regard to the records of the airport and credible fear interviews, there is no indication that Hong did not understand the interviewers' questions or that his particular circumstances would explain his failure to respond "yes" when asked twice whether he had ever been arrested. See Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d. Cir. 2004). Although Hong claimed that he had been nervous and that he was never asked about the July 2003 arrest during his credible fear interview, those explanations were insufficient. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 396, 397 n. 6, 399 n. 8 (2d Cir. 2005) (An applicant's "mere recitation that he was nervous or felt pressured during an airport interview will not automatically prevent" the agency from relying on the interview for an adverse credibility determination as long as the agency acknowledges and evaluates this explanation).
Taken as a whole, the IJ's adverse credibility determination was supported by substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Therefore, the IJ properly denied Hong's application for asylum and withholding of removal because the only evidence that he would be persecuted depended on his credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). By failing to meaningfully challenge the agency's denial of CAT relief before this Court, Hong has waived any challenge to the denial of that relief. See Yueqing Zhang, 426 F.3d at 545 n. 7.
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. The 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(b).