Opinion
No. 08-0369-ag NAC.
February 9, 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.
FOR PETITIONER: Sheema Chaudhry, New York, New York. FOR RESPONDENT: Gregory G. Katsas, Acting Assistant Attorney General, Civil Division; Cindy S. Ferrier, Senior Litigation Counsel; Michele Y. F. Sarko, Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C.
PRESENT: HON. DENNIS JACOBS, Chief Judge , HON. ROSEMARY S. POOLER, HON. REENA RAGGI, Circuit Judges.
Petitioner Qi Keng Zheng, a native and citizen of the People's Republic of China, seeks review of a January 4, 2008 order of the BIA affirming the April 7, 2006 decision of Immigration Judge ("IJ") George T. Chew denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Qi Keng Zheng, No. A 98 593 932 (B.I.A. Jan. 4, 2008), aff'g No. A 98 593 932 (Immig. Ct. N.Y. City Apr. 7, 2006). We assume the parties' familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ's decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). "We review the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as `conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.'"Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007) (quoting 8 U.S.C. § 1252(b)(4)(B)). However, we will vacate and remand for new findings if the agency's reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 406 (2d Cir. 2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir. 2004). For asylum 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, 165 (2d Cir. 2008).
We conclude that substantial evidence supports the agency's adverse credibility determination. The IJ properly found that Zheng failed to mention at his border interview the problems he allegedly experienced in China due to his promotion of Falun Gong — stating instead that he came to the United States to work. Given that Zheng has failed to challenge that finding in his brief, we deem any such challenge waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir. 2005). Even assuming that Zheng had challenged the finding, the agency properly relied on this omission to find him not credible. See Xiu Xia Lin, 534 F.3d at 167 (finding that "an IJ may rely onany inconsistency or omission in making an adverse credibility determination as long as the `totality of the circumstances' establishes that an asylum applicant is not credible" (emphasis in original) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)); cf. Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006).
The agency's adverse credibility determination was also supported by the IJ's finding that Zheng testified inconsistently with his background materials regarding how many Falun Gong exercises there were. Irrespective of whether it was implausible under the REAL ID Act that Zheng would only practice four of the five Falun Gong exercises, the IJ's inconsistency finding properly supported his adverse credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii).
Further, the IJ reasonably found it implausible that Zheng would encourage his co-workers to practice Falun Gong when he himself did not practice it, or that Zheng would be able to correspond with a friend who was in hiding from the authorities in China. See Ying Li v. BCIS, 529 F.3d 79, 82 (2d Cir. 2008) ("[W]hen an adverse credibility finding is based partly or entirely on implausibility, we review the entire record, not whether each unusual or implausible feature of the account can be explained or rationalized.");cf. Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (holding that when an IJ finds that an applicant's evidence is false, he or she is free to disbelieve other testimony that depends for probative weight upon the applicant's veracity). We recently found in Ying Li that the agency did not err in relying on the implausibility that an applicant would promote Falun Gong for over six years without ever learning or practicing it herself. 529 F.3d at 82.
Under these circumstances, the agency's adverse credibility determination was supported by substantial evidence.See 8 U.S.C. § 1158(b)(1)(B)(iii). Thus, its denial of Zheng's application for asylum was proper. Because the only evidence of a threat to Zheng's life or freedom depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on his claims for withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. The pending motion for a stay of removal in this petition is DISMISSED as moot.