GUANG CHEN, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent, 361 F. App'x 238

SUMMARY ORDER Petitioner Guang Chen, a native and citizen of the People’s Republic of China, seeks review of an August 29, 2008 order of the BIA affirming the February 27, 2007. decision of Immigration Judge (“IJ”) Jeffrey S. Chase, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Guang Chen, No. [ AXXX XXX XXX ] (B.I.A. Aug. 29, 2008), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Feb. 27, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

When the BIA affirms the IJ’s decision in some respects but not others, this Court reviews the IJ’s decision as modified by the BIA decision. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (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).

Because Chen filed his asylum application after May 11, 2005, the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005 apply to his asylum application. See Pub.L. No. 109-13, § 101(h)(2), 119 Stat. 231, 305 (2005).

For asylum applications governed by the REAL ID Act, 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)(l)(B)(iii); see Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007). Substantial evidence supports the agency’s adverse credibility determination.

The BIA affirmed the IJ’s adverse credibility determination based on three discrepancies between Chen’s testimony and his asylum application. Under the REAL ID Act, the IJ properly relied on those inconsistencies. See 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008). Although Chen attempts to explain his inconsistent testimony in his opening brief, he failed to present those explanations before the BIA, and we will not consider them in the first instance. See 8 U.S.C. § 1252(d)(1); Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n. 1(b), 119-20 (2d Cir.2007).

Because the IJ’s adverse credibility determination was supported by substantial evidence, we need not reach his alternative finding that, even assuming Chen’s credibility, he failed to meet his burden of proof. As the only evidence of a threat to Chen’s life or freedom depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on his claims for asylum and withholding of removal because both claims were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).

Chen does not challenge the agency’s denial of his CAT claim in his brief to this Court. 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 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 34.1(b).