HAI LIN CHEN, a.k.a. Hailins Chen, a.k.a. Hailin Chen, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, United States Department of Justice, Respondent.

No. 08-3463-ag.United States Court of Appeals, Second Circuit.
January 27, 2010.

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[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

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.

Hai Lin Chen, pro se.

Michael F. Hertz, Acting Assistant Attorney General, Barry J. Pettinato, Assistant Director, John D. Williams, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.


Petitioner Hai Lin Chen, a native and citizen of China, seeks review of the June 17, 2008 order of the BIA affirming the November 8, 2006 decision of Immigration Judge (“IJ”) Noel Ann Ferris denying his application for asylum and withholding of removal. In re Hai Lin Chen, No. A 098 000 955 (B.I.A. June 17, 2008), aff’g No. A 098 000 955 (Immig. Ct. N.Y. City Nov. 8, 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. 8 U.S.C. § 1252(b)(4)(B) see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

Chen has waived any challenge to the agency’s finding that he failed to establish that he endured past persecution. In his brief before this Court, Chen argues, without any elaboration, that “the BIA abused its discretion in failing to consider that [he] established . . . past persecution.” Even construed broadly, see Weixel v. Board of Educ., 287 F.3d 138, 145-46 (2d Cir. 2002), Chen’s pro se brief does not sufficiently challenge the agency’s specific finding that he could not establish past persecution in the absence of any evidence, see Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005) (finding that issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal in the absence of manifest injustice).

With respect to Chen’s Falun Gong claim, in his brief before this Court, Chen fails to challenge the agency’s findings that: (1) his insolent demeanor undermined his credibility; and (2) his testimony that he met with a Falun Gong group 36 times but did not know any of the members’ names or ask them to submit affidavits on his behalf was implausible. Thus, he has waived any challenge to those findings, id., and they stand as valid bases for the IJ’s adverse credibility determination,

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see Shunfu Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir. 2008).

As to the findings that Chen does challenge, each was proper. Chen argues in his brief that the IJ erred by: (1) finding him not credible without identifying inconsistencies and omissions that were central to his persecution claim; and (2) failing to provide him with an opportunity to explain any perceived discrepancies in the record. The first of these arguments is without merit in light of the REAL ID Act of 2005, under which the IJ was entitled to rely on “any inconsistency or omission” in making her adverse credibility determination, whether or not that inconsistency was central to Chen’s claim. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). As to Chen’s second argument, it fails because the record reveals that the IJ asked clear and direct questions, and repeated those questions in order to provide Chen with numerous opportunities to explain discrepancies. See Majidi v. Gonzales, 430 F.3d 77, 81
(2d Cir. 2005) (holding that “an IJ may rely on an inconsistency in an asylum applicant’s account to find that applicant not credible . . . without soliciting from the applicant an explanation for the inconsistency”). Thus, we are not compelled to disagree with the IJ’s denial of Chen’s application for asylum and withholding of removal because the only evidence that he 10 would be persecuted depended on his credibility. See Xiu Xia Lin, 534 F.3d at 167; Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

For the foregoing reasons, the petition for review is DENIED.