BIN OU, a.k.a. LYNN MELODY PHAM, Petitioner, v. MICHAEL B. MUKASEY, ATTORNEY GENERAL, Respondent.

No. 08-1690-ag NAC.United States Court of Appeals, Second Circuit.
November 26, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

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.

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FOR PETITIONER: Edward J. Cuccia, New York, NewYork.
FOR RESPONDENT: Gregory G. Katsas, Assistant AttorneyGeneral, Barry J. Pettinato, Assistant Director, John D.Williams, Trial Attorney, Office of Immigration Litigation,United States Department of Justice, Civil Division,Washington, D.C.

PRESENT: HON. DENNIS JACOBS, ChiefJudge, HON. JON O. NEWMAN, HON. JOHN M. WALKER,JR., Circuit Judges.

Petitioner Bin Ou, a citizen of the People’s Republic of China, seeks review of a March 14, 2008 order of the BIA affirming the May 2, 2006 decision of Immigration Judge (“IJ”) Thomas J. Mulligan denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Bin Ou, No. A 95 710 063 (B.I.A. Mar. 14, 2008), aff’g No. A 95 710 063 (Immig. Ct. N.Y. City May 2, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of

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that decision, we review both the BIA’s and IJ’s opinions — or more precisely, we review the IJ’s decision including the portions not explicitly discussed by the BIA Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, which requires that “administrative findings of fact [be] conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir. 2007). 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 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 Matter of J-Y-C-, 24 I. N. Dec. 260, 265 (BIA 2007).

As an initial matter, because Ou failed to sufficiently challenge the agency’s denial of her CAT claim in either her brief to the BIA or her brief to this Court, we deem that claim abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723
n. 6 (2d Cir. 2007).

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We further find that substantial evidence supports the agency’s adverse credibility determination. For example, the agency properly relied on the complete difference between Ou’s admittedly false account of her past experiences as told to U.S. immigration officials in both an airport and a credible fear interview, [1] and the supposedly genuine account offered in support of her claims for relief before the agency. See Yun-Zui Guan, 432 F.3d at 398 (finding that it was proper for an IJ to “rely on the commonsense observation that it is inconsistent for a petitioner to respond to the same question about the nature of his asylum claim with two entirely different responses”); id. at 398-99 (“Where, as here, immigration officials have been presented with two `materially different’ asylum claims, it is entirely appropriate for a factfinder to rely on this evidence as a basis for determining whether a petitioner was actually persecuted in the manner asserted or is instead merely reciting an account fabricated for the purposes of obtaining entry into the United States.”) Ramsameachire v. Ashcroft, 357 F.3d 169, 180-81 (2d Cir.

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2004) (“Where the alien’s airport statements and his or her later testimony present materially different accounts of his or her purported persecution, . . . the inconsistencies may render the alien’s testimony incredible.”). The agency also reasonably relied on record inconsistencies regarding the length of Ou’s pregnancy at the time of her alleged abortion, and whether her aunt was present when family planning officials allegedly came to take her for the abortion procedure. Under the REAL ID Act, these findings were sufficient to support the conclusion that Ou was not credible. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). Accordingly, the agency’s denial of asylum was not improper. Because Ou’s asylum and withholding of removal claims were premised on the same factual predicate, and because Ou failed to meet the burden of proof for asylum, the adverse credibility determination was fatal to both claims See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition

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is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any 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).

[1] We find that the record of Ou’s airport interview was sufficiently reliable to merit consideration by the agency in its credibility analysis. See Ramsameachire v. Ashcroft, 357 F.3d 169, 179-80 (2d Cir. 2004). Ou does not challenge the agency’s use of her statements in the interview.

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