12-810
Jin v. Holder
BIA
Vomacka, IJ
A089 266 907
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 13th day of September, two thousand thirteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DENNY CHIN,
10 CHRISTOPHER F. DRONEY,
11 Circuit Judges.
12 _____________________________________
13
14 YAN BIN JIN,
15 Petitioner,
16
17 v. 12-810
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Gary J. Yerman, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Douglas E.
28 Ginsburg, Assistant Director; Deitz
29 P. Lefort, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Yan Bin Jin, a native and citizen of China,
6 seeks review of a February 7, 2012, order of the BIA,
7 affirming a January 12, 2010, decision of Immigration Judge
8 (“IJ”) Alan Vomacka, denying his application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Yan Bin Jin, No. A089 266
11 907 (B.I.A. Feb. 7, 2012), aff’g No. A089 266 907 (Immig.
12 Ct. N.Y. City Jan. 12, 2010). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have
16 considered both the IJ’s and the BIA’s opinions “for the
17 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
18 (2d Cir. 2008). The applicable standards of review are
19 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
20 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). For
21 applications like this one, governed by the REAL ID Act of
22 2005, the agency may, considering the totality of the
23 circumstances, base a credibility finding on an asylum
2
1 applicant’s demeanor, the plausibility of his account, and
2 inconsistencies in his statements, without regard to whether
3 they go “to the heart of the applicant’s claim.” 8 U.S.C.
4 § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24 I. & N. Dec. 260,
5 265 (B.I.A. 2007). Analyzed under these standards, the
6 agency’s adverse credibility determination is supported by
7 substantial evidence.
8 In finding Jin not credible, the agency reasonably
9 relied on the omission of his alleged injuries at the hands
10 of family planning officials from his asylum application and
11 a supporting letter from his wife. See 8 U.S.C.
12 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
13 166 (2d Cir. 2008) (providing that, for purposes of
14 analyzing a credibility determination, “[a]n inconsistency
15 and an omission are . . . functionally equivalent”). While,
16 as Jin notes, asylum applicants “are not required to list
17 every incident of persecution” in their applications, see
18 Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006), the agency
19 reasonably found that Jin’s omission supported an adverse
20 credibility finding because it concerned the single incident
21 on which his past persecution claim was based and because
22 Jin’s statement and his wife’s letter were otherwise
23 reasonably detailed. Cf. id. at 90 (noting that
3
1 petitioner’s asylum application stated claim in general
2 terms, without describing specific incidents).
3 Although Jin attempted to explain the omission of his
4 injuries from his wife’s letter by stating that he did not
5 tell his wife about his injuries before he left China
6 because she had suffered more severe harm in the form of a
7 forced abortion, the agency was not required to credit this
8 explanation. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
9 Cir. 2005) (holding that an agency need not credit an
10 applicant’s explanations for inconsistencies in the record
11 unless those explanations would compel a reasonable
12 fact-finder to do so). As the IJ explained, it was not
13 plausible that Jin’s wife saw him the evening of the day he
14 was beaten by officials, yet had no knowledge that he
15 suffered a bloody nose and had a tooth knocked out. See
16 8 U.S.C. § 1158(b)(1)(B)(iii); Wensheng Yan v. Mukasey, 509
17 F.3d 63, 66-67 (2d Cir. 2007). Furthermore, Jin’s brief on
18 appeal addresses only the omission of his injuries from his
19 asylum application, and fails to challenge the agency’s
20 findings that the omission of his injuries from his wife’s
21 letter, as well as Jin’s false representations to the United
22 States consulate in procuring a nonimmigrant visa, supported
23 an adverse credibility finding. See Xiu Xia Lin, 534 F.3d
4
1 at 167; Shunfu Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir.
2 2008) (finding that petitioner’s failure to challenge
3 multiple bases for the IJ’s adverse credibility
4 determination was significant, as the unchallenged findings
5 could support the adverse credibility determination on their
6 own).
7 In light of the agency’s properly supported adverse
8 credibility finding, it did not err in denying Jin’s
9 applications for relief. See Paul v. Gonzales, 444 F.3d
10 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
11 Justice, 426 F.3d 520, 523 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2) and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
5