Ben Kui Chen v. Keisler
Ben Kui Chen v. Keisler
Opinion of the Court
SUMMARY ORDER
Ben Kui Chen, a native and citizen of the People’s Republic of China, seeks review of a September 19, 2006 order of the BIA affirming the May 6, 2005 decision of Immigration Judge (“U”) Alan Vomacka denying Chen’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).
As a threshold matter, we must reject the Government’s contention that Chen failed to exhaust the issues raised in his petition. Chen’s brief to the BIA argued that he had “testified clearly and consistently ... and the [IJ] failed to analyze his testimony as such.” The omitted detail would not “constitute [ ] a ground, in and of itself, on which an IJ’s denial of [relief] may be based.” See Steevenez v. Gonzales, 476 F.3d 114, 117-18 (2d Cir. 2007).
As to the merits, when the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See, e.g., Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir. 2005); Secaida-Rosales v. I.N.S., 331 F.3d 297, 305 (2d Cir. 2003). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See Zhou Yun Zhang v. I.N.S., 386 F.3d 66, 73 (2d Cir. 2004), overruled on other grounds, Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).
Applying this standard, we conclude the IJ’s adverse credibility finding rested on significant inconsistencies between Chen’s testimony and a letter he submitted to the
Moreover, contrary to Chen’s argument, the letter was not merely an ancillary matter, but went to the heart of his claim that he faced persecution because he was a Christian. See Secaida-Rosales, 331 F.3d at 308-09. The IJ sought other evidence that would corroborate Chen’s religious practices. See Diallo v. INS, 232 F.3d 279, 290 (2d Cir. 2000) (observing that “corroborating evidence (or an explanation for its absence) may be required if it would reasonably be expected, even where the applicant’s testimony is credible”). After observing that Chen had not, as promised, submitted an updated letter from his current church, the IJ permissibly weighed that against Chen’s overall credibility.
To be sure, the IJ’s decision is not a model of clarity in all respects. But taken as a whole, we conclude that it was supported by substantial evidence and provided a valid basis for the denial of asylum and withholding of removal. See SecaidaRosales, 331 F.3d at 307; Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). As such, we do not reach the alternative rationale offered for the BIA’s decision.
For the foregoing reasons, the petition for review is DENIED. 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(d)(1).
. Because Chen failed to raise his CAT claim in his brief, we deem that claim waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005).
Reference
- Full Case Name
- BEN KUI CHEN v. Peter D. KEISLER, Acting Attorney General
- Status
- Published