AI LAN CAI, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 538 F. App'x 93

SUMMARY ORDER Petitioner Ai Lan Cai, a native and citizen of China, seeks review of a September 14, 2012, decision of the BIA affirming a May 12, 2011, decision of Immigration Judge (“IJ”) Sandy K. Horn, denying Cai’s application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). In re Ai Lan Cai, No. [ AXXX XXX XXX ] (B.I.A. Sept. 14, 2012), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City May 12, 2011). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we review the decisions of both the IJ and the BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513-14 (2d Cir.2009).

For applications like this one, governed 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 her account, and inconsistencies in her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(in); Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (B.I.A.2007). Analyzed under these standards, the agency’s adverse credibility determination is supported by substantial evidence.

In finding Cai not credible, the IJ reasonably relied on the inconsistency between her statement during a border interview that she feared religious persecution, and her subsequent claim based on a forced abortion. Contrary to Cai’s contention that the interview was unreliable, the record of the interview, which sets forth the questions asked and Cai’s responses, shows that she was asked questions designed to elicit the details of an asylum claim and there is no indication that she misunderstood the questions. See Ramsameachire v. Ashcroft, 357 F.3d 169, 181 (2d Cir.2004).

Further, the agency considered Cai’s varying explanations for initially claiming that she had been persecuted on account of her religion—that she was embarrassed, had not eaten, was confused, and was nervous—and reasonably rejected them. See Yun-Zui Guan, 432 F.3d at 397 n. 6 (2d Cir.2005) (finding that “an alien’s mere recitation that he was nervous or felt pressured during an airport interview will not automatically prevent the IJ or BIA from relying on statements in such interviews when making adverse credibility determinations”); see also Majidi v.

Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005) (under substantial evidence standard, agency need not credit an applicant’s explanations unless those explanations would compel a reasonable fact-finder to do so). Although Cai challenges the agency’s determination that she provided inconsistent testimony as to whether she was asked for her birth permit before or after she was taken into a van, the record reflects that her testimony differed from her credible fear interview.

While this inconsistency is quite minor, under the REAL ID Act, “an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the ‘totality of the circumstances’ establishes that an asylum applicant is not credible.” Xiu Xia Lin, 534 F.3d at 167 (emphasis in original).

This is particularly so given Cai’s failure to address the more substantial inconsistencies identified by the IJ— her statement in the credible fear interview that the abortion occurred in August 2007 when she was nine months pregnant, and not, as she testified at the hearing, in July 2007 when she was five months pregnant. Cai is correct that the agency did not address the medical evidence supporting her claim. However, we presume that the agency “has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise,” Xiao Ji Chen v. U.S.

Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006). Here, Cai testified about the medical evidence at the merits hearing, and nothing in the record suggests, much less compels the conclusion, that the agency did not consider it. Accordingly, under the totality of the circumstances, substantial evidence supports the agency’s adverse credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Having reasonably found that Cai failed to establish eligibility for asylum on credibility grounds, the agency did not err in denying withholding of removal. See Paul v.

Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Finally, Cai has waived any challenge to the agency’s denial of CAT relief by failing to raise this issue in her brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005) 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).