    08-0343-ag
    Chi v. Holder
                                                                                     BIA
                                                                                  Hom, IJ
                                                                              A77-922-192
                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S LO CAL RULE
32.1.1 AND FEDERAL R ULE OF APPELLATE PROCEDURE 32.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER
M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 5 th day of February, two thousand ten.

    PRESENT:  JON O. NEWMAN,
              ROSEMARY S. POOLER,
              DEBRA ANN LIVINGSTON,
                           Circuit Judges.
    _______________________________________

    YUN HUI CHI,
             Petitioner,

                    v.                                       08-0343-ag
                                                             NAC
    ERIC H. HOLDER JR., U.S. ATTORNEY
    GENERAL, 1
               Respondent.
    _______________________________________
    FOR PETITIONER:        Charles Christophe, Christophe &
                           Associates, New York, New York.

    FOR RESPONDENT:                 Gregory G. Katsas, Assistant
                                    Attorney General, Civil Division;


             1
         Pursuant to Federal Rule of Appellate Procedure
    43(c)(2), Attorney General Eric H. Holder Jr. is
    automatically substituted for former Attorney General
    Michael B. Mukasey as respondent in this case.
                       Ernesto H. Molina, Jr., Senior
                       Litigation Counsel; Ali Manuchehry,
                       Trial Attorney, Office of
                       Immigration Litigation, Civil
                       Division, United States Department
                       of Justice, Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED in part and DISMISSED in part.

    Petitioner Yun Hui Chi, a native and citizen of the

People’s Republic of China, seeks review of the December 20,

2007 order of the BIA affirming the February 1, 2006

decision of Immigration Judge (“IJ”) Sandy Hom, denying her

applications for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).     In re Yun Hui

Chi, No. A77 922 192 (B.I.A. Dec. 20, 2007), aff’g No. A77

922 192 (Immig. Ct. N.Y. City Feb. 1, 2006).    We assume the

parties’ familiarity with the underlying facts and

procedural history of the case.

    When the BIA agrees with the IJ's conclusion that a

petitioner is not credible and, without rejecting any of the

IJ's grounds for decision, emphasizes particular aspects of

that decision, this Court reviews both the BIA's and IJ's

opinions-or more precisely, the Court reviews the IJ's

decision including the portions not explicitly discussed by

                             2
the BIA.     Yun-Zui Guan v. Gonzales, 432 F .3d 391, 394 (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, e.g., Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.

2007).     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).

    Substantial evidence supports the agency’s adverse

credibility determination because the agency identified a

material inconsistency regarding Petitioner’s capture on the

day of her alleged forced abortion.      In 2002, Petitioner

testified that she “kept running and running” and was

“[v]ery far away” from her aunt’s house before she slipped

and was apprehended by the family planning officials.

However, in 2006, Petitioner testified that she was near the

house when she tripped and fell and that she “just had the

back door open and [she had] just started to get outside

through the back door before [she] tripped and fell.”         This

inconsistency goes to the heart of Petitioner’s claim that

her abortion was forced, as it concerns the facts

surrounding her alleged apprehension and capture.       See

Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003),



                                3
superseded by statute as recognized in Xiu Xia Lin v.

Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008) (per curiam) 2

(noting that, in pre-REAL ID Act cases, an adverse

credibility determination must be based on “specific, cogent

reasons” that “bear a legitimate nexus” to the finding);

Hongsheng Leng v. Mukasey, 528 F.3d 135, 141 (2d Cir. 2008)

(“The agency may properly base an adverse credibility

determination on a discrepancy in the petitioner’s evidence

if the discrepancy in question goes ‘to the heart’ of

petitioner’s claim for relief.”).   Moreover, the IJ gave

Petitioner a chance to reconcile her testimony.     See Ming

Shi Xue v. BIA, 439 F.3d 111, 125 (2d Cir. 2006).      Chi

explained that the distance she had run had seemed far

because she was pregnant and felt unclear and faint.         We do

not agree that a reasonable factfinder would have been

compelled to accept her explanation.   See Majidi v.

Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).




    2
     The standard of review articulated in Secaida-Rosales
was superseded by the enactment of the REAL ID Act. See Xiu
Xia Lin, 534 F.3d at 167 (“our previous holding that an IJ
may not base an adverse credibility determination on
inconsistencies and omissions that are ‘collateral or
ancillary’ to an applicant’s claims has been abrogated by
the amendments to the statutory standard imposed by the REAL
ID Act”). However, because Petitioner filed her asylum
claim before the changes worked by the REAL ID Act took
effect, Secaida-Rosales governs this case.

                              4
    We conclude, moreover, that the IJ did not err in

determining that petitioner failed to provide evidence that

she would suffer persecution on account of the birth of her

second child in the United States.   Nor did the agency err

in rejecting petitioner’s claim that she reasonably feared

future persecution or that she was entitled to CAT relief to

the extent the claim was based upon her illegal departure

from China.   See Mu Xiang Lin v. U.S. Dep’t of Justice, 432

F.3d 156, 159-60 (2d Cir. 2005) (holding that an applicant

is not “entitled to CAT protection based solely on the fact

that she is part of the large class of persons who have

illegally departed China”).

    Ultimately, the record supports the agency’s conclusion

that the Petitioner was not credible.   See 8 U.S.C.

§ 1158(b)(1)(B)(iii); Hongsheng Leng, 528 F.3d at 141.

Because the Petitioner’s asylum and withholding of removal

claims were based on the same factual predicate, the adverse

credibility determination was fatal to both claims.     See

Paul v. Gonzales, 444   F.3d 148, 156 (2d Cir. 2006).

Further, inasmuch as Petitioner based her CAT claim on her

own assertions, the agency’s adverse credibility finding was

fatal to that claim as well.   See Xue Hong Yang v. U.S.

Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).



                               5
    Petitioner argues, for the first time on appeal, that

the agency violated her due process rights by failing to

present her with the opportunity to address the “non-

obvious” inconsistency upon which the IJ relied.     However,

such claim is an obvious attempt to recast a factual

argument as a constitutional challenge.     Moreover, the

argument is patently frivolous because the IJ questioned

Petitioner at length about the inconsistency at issue.

Because Petitioner’s due process argument is “so

insubstantial and frivolous as to be inadequate to invoke

[our] federal-question jurisdiction,” the petition for

review is dismissed with respect to this argument.

Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008).

    For the foregoing reasons, the petition for review is

DENIED in part and DISMISSED in part.     As we have completed

our review, the pending motion for a stay of removal in this

petition is DISMISSED as moot.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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