Rong CHEN, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent, 623 F. App'x 559

SUMMARY ORDER Petitioner Rong Chen, a native and citizen of China, seeks review of a May 16, 2014, decision of the BIA affirming an April 2, 2012, decision of an Immigration Judge (“IJ”) denying Chen’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Rong Chen, No. [ AXXX XXX XXX ] (B.I.A. May 16, 2014), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Apr. 2, 2012). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We have reviewed the IJ’s decision “as modified by” the BIA, i.e., minus the determination that Chen’s asylum application was untimely filed. Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). Contrary to Chen’s argument, it was not error for the BIA to bypass the timeliness issue and instead consider the merits of Chen’s asylum claim. See INS v. Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”).

Accordingly, we address only the adverse credibility determination and review it for substantial evidence. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008); 8 U.S.C. § 1252(b)(4)(B).

For asylum applications, like Chen’s, governed by the REAL ID Act, the agency may, “[Considering the totality of the circumstances,” base a credibility finding on inconsistencies and omissions in an applicant’s statements and other record evidence “without regard to whether” they go “to the heart of the applicant’s claim,” as well as demeanor and responsiveness during questioning. 8 U.S.C. § 1158(b)(l)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64, 167.

Omissions are “functionally equivalent” to inconsistencies, and “can serve as a proper basis for an adverse credibility determination.” Xiu Xia Lin, 534 F.3d at 166, n. 3. Substantial evidence supports the agency’s determination that Chen was not credible. In finding Chen not credible, the IJ gave specific examples of Chen’s demeanor during the merits hearing. Demeanor is “par-adigmatically the sort of evidence that a fact-finder is best positioned to evaluate.” Li Zu Guan v. INS, 453 F.3d 129, 140 (2d Cir.2006).

We therefore grant “particular deference” in applying the substantial evidence standard to credibility findings based on demeanor. Shu Wen Sun v. B.I.A., 510 F.3d 377, 381 (2d Cir.2007) (internal quotation marks and citations omitted). Moreover, the IJ’s finding — that Chen’s fluid testimony on direct examination appeared “rehearsed” when compared to his “halting, confused and varying testimony on cross examination” — is supported by the transcript. Chen argues that the IJ should not have relied on the discrepancies between his asylum interview, testimony, and application.

Because Chen’s asylum interview contains a “meaningful, clear, and reliable

summary of the statements made by [Chen] at the interview,”- the agency could rely on it. Diallo v. Gonzales, 445 F.3d 624, 632 (2d Cir.2006) (internal quotation marks and citation omitted). Chen testified that his legs and feet were badly bruised and swollen after he was beaten by police, but his asylum interview and application stated only he was slapped in the face and punched in the abdomen. Chen’s omission of these injuries was a proper basis for the IJ’s adverse credibility determination. Xiu Xia Lin, 534 F.3d at 166, n. 3.

Further, the agency was not compelled to credit Chen’s explanations for these omissions — that he included only “the important things” in his application and “forgot” to mention these injuries during his asylum interview. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.2005) (“A petitioner must do more than offer a plausible explanation for his inconsistent statements to secure relief; he must demonstrate that a reasonable fact-finder would be compelled to credit his testimony.” (internal quotation marks and citations omitted)).

It is implausible that Chen’s most severe injuries were not- “important” enough to include in his application, or that he “forgot” these injuries during his asylum interview. Majidi, 430 F.3d at 80-81. Chen argues that his testimony about his passports should not have factored into the adverse credibility determination because it did not have anything “to do with the Petitioner’s claim regarding the persecution he suffered.” However, an inconsistency need not go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii).

Thus, the inconsistent testimony regarding Chen’s passports was properly considered. Id. Chen also attacks the IJ’s conclusion that he did not submit sufficiently reliable written corroboration to rehabilitate his testimony. First, Chen faults the IJ for discounting his birth certificate and household registration because they were not authenticated. Although the agency may err in rejecting a document based solely on a failure to authenticate it under the regulations, see Cao He Lin v. U.S.

Dep’t of Justice, 428 F.3d 391, 403 (2d Cir.2005), it does not err where, as here, it discounted documentary evidence that was not authenticated in any way and was dated as issued in 2010 (after his stated arrival in the United States), and there were “legitimate concerns” about Chen’s credibility, see Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148 (2d Cir.2007); Matter of H-L-H & Z-Y-Z-, 25 I. & N. Dec. 209, 214-15 (B.I.A.2010).

Chen also argues that the agency improperly speculated about the “document practices of [a] particular police department in China” by assuming documentation would be issued to him regarding his arrest and detention. However, this argument distorts the IJ’s findings. The IJ did “not accept [Chen’s] testimony that there- was no documentation whatsoever concerning his detention or release,” whether from the police or another source. Moreover, Chen did not raise this argument before the Board and may not raise it for the first time on appeal. See Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir.2007).

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).