ZHONG HUI CHEN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent, 366 F. App'x 248

SUMMARY ORDER Zhong Hui Chen, a native and citizen of the People’s Republic of China, seeks review of an August 28, 2008 order of the BIA affirming the November 8, 2006 decision of Immigration Judge (“IJ”) Steven R. Abrams, denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Zhong Hui Chen, No. [ AXX XXX XXX ] (B.I.A. Aug. 28, 2008), affg No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City Nov. 8, 2006). We assume the parties’ familiarity with the underlying facts arid procedural history of this case.

When the BIA affirms the IJ’s decision in all respects but one, we review the IJ’s decision as modified by the BIA decision, i.e., “minus the single argument for denying relief that was rejected by the BIA.” Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). Here, where the BIA noted the IJ’s error as to a perceived inconsistency in the record, but found that the adverse credibility determination was otherwise supported by the record, we review the IJ’s decision minus that erroneous finding. Id.

We review the agency’s factual findings, including adverse credibility findings, 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).

For asylum applications governed by the amendments made to the Immigration and Nationality Act (“INA”) 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)(l)(B)(iii).

We “defer ... to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,167 (2d Cir.2008). Here, the IJ properly identified an internal inconsistency in Chen’s testimony where he initially claimed never to have left his uncle’s village when he was in hiding there, then indicated that he had left on one occasion for a doctor’s appointment, and again at the instruction of a snakehead.

These statements are clearly inconsistent, and Chen waives any challenge to this finding in his brief to this Court. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005). The IJ also found that during his testimony Chen “always was evasive, putting his head down, not answering questions, not looking at anyone.” We accord to an IJ’s findings relating to an applicant’s demeanor “particular deference” because the IJ’s ability to observe the witness’s demeanor places him in the best position to evaluate whether apparent problems in the witness’s testimony suggest a lack of credibility. Shu Wen Sun v.

BIA, 510 F.3d 377, 381 (2d Cir.2007) (quoting Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104,113 (2d Cir.2005)). We find no reason not to accord deference to the IJ’s demeanor finding in this case. Finally, in finding Chen not credible, the IJ relied on his failure to corroborate his claims that he protested the family planning policy and that he went into hiding at his uncle’s house before he fled China. Such findings where proper where Chen’s failure to corroborate his testimony made him unable to rehabilitate testimony that had already been called into question. See Xiao Ji Chen v. US.

Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.2006). Taken together, the internal inconsistencies in Chen’s testimony, his evasive demeanor, and his failure to corroborate certain aspects of his claim served to undermine his credibility, see 8 U.S.C. § 1158(b)(l)(B)(iii), and the IJ’s adverse credibility determination thus was supported by substantial evidence, 8 U.S.C. § 1252(b)(4)(B); see also Corovic, 519 F.3d at 95. Accordingly, the agency’s denial of Chen’s application for asylum was proper.

Finally, inasmuch as Chen based his withholding of removal and CAT claims on the same factual predicate as his asylum claim, those claims necessarily fail. 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, the pending motion for a stay of removal in this petition is DISMISSED as moot.