12-4318
Lin v. Holder
BIA
Christensen, IJ
A200 921 074
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 2nd day of October, two thousand thirteen.
5
6 PRESENT:
7
8 ROBERT A. KATZMANN,
9 Chief Judge,
10 BARRINGTON D. PARKER,
11 REENA RAGGI,
12 Circuit Judges.
13
14 _______________________________________
15
16 CHANG HUI LIN,
17 Petitioner,
18
19 v. 12-4318
20 NAC
21 ERIC H. HOLDER, JR., UNITED STATES
22 ATTORNEY GENERAL,
23 Respondent.
24 _______________________________________
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26 FOR PETITIONER: Gary J. Yerman, New York, New York.
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28 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
29 Attorney General; David V. Bernal,
1 Assistant Director; Stuart S.
2 Nickum, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
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7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Chang Hui Lin, a native and citizen of the
12 People’s Republic of China, seeks review of an October 4,
13 2012, decision of the BIA affirming the June 6, 2011,
14 decision of Immigration Judge (“IJ”) Jesse B. Christensen,
15 which denied his application for asylum, withholding of
16 removal, and relief under the Convention Against Torture
17 (“CAT”). In re Chang Hui Lin, No. A200 921 074 (B.I.A. Oct.
18 4, 2012), aff’g No. A200 921 074 (Immig. Ct. N.Y. City Jun.
19 6, 2011). We assume the parties’ familiarity with the
20 underlying facts and procedural history in this case.
21 Under the circumstances of this case, we have reviewed
22 the IJ’s decision as supplemented by the BIA. See Yan Chen
23 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
24 applicable standards of review are well-established. See
25 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
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1 562 F.3d 510, 513 (2d Cir. 2009). For applications such as
2 Lin’s, governed by the amendments made to the Immigration
3 and Nationality Act by the REAL ID Act of 2005, the agency
4 may, “[c]onsidering the totality of the circumstances . . .
5 base a credibility determination on the demeanor, candor, or
6 responsiveness of the applicant or witness, the inherent
7 plausibility of [his or her] account,” and inconsistencies
8 in his or her statements, “without regard to whether . . .
9 [they go] to the heart of the applicant’s claim.” See
10 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534
11 F.3d 162, 167 (2d Cir. 2008) (per curiam).
12 I. One-Year Bar
13 Pursuant to 8 U.S.C. § 1158(a)(3), we lack jurisdiction
14 to review the agency’s determination that an asylum
15 application is untimely. See 8 U.S.C. § 1158(a)(2)(B).
16 Notwithstanding these provisions, however, we retain
17 jurisdiction to review “constitutional claims or questions
18 of law.” 8 U.S.C. § 1252(a)(2)(D). While Lin raises two
19 arguments which may be construed as questions of law, namely
20 that the agency’s adverse credibility determination was
21 improperly used to find he had not timely filed his asylum
22 application, and that the agency failed to consider the date
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1 of arrival listed on the Notice to Appear, he failed to
2 raise these arguments before the BIA, and thus they are
3 unexhausted. See Lin Zhong v. U.S. Dep’t of Justice, 480
4 F.3d 104, 119-20 (2d Cir. 2007). Regardless, the IJ
5 explicitly noted that he would also deny asylum based on
6 credibility, and that finding is dispositive of Lin’s
7 petition.
8 II. Asylum, Withholding of Removal, and CAT
9 In finding Lin not credible, the agency reasonably
10 relied on Lin’s inconsistent testimony. See Xiu Xia Lin v.
11 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). During his
12 merits hearing, Lin changed his testimony regarding whether
13 he had ever had his own passport and whether he had ever
14 left China before 2010. Under the REAL ID Act, the agency
15 properly relied on this inconsistency as a basis for an
16 adverse credibility finding. See 8 U.S.C.
17 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d
18 at 167 (providing that an IJ may support an adverse
19 credibility determination with “any inconsistency or
20 omission”). In addition, as the IJ noted, this
21 inconsistency goes to the heart of Lin’s claim, as he
22 testified that he left China in 2008 to escape persecution.
4
1 See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430
2 F.3d 77, 80-81 (2d Cir. 2005).
3 We also defer to the agency’s demeanor finding. Li Zu
4 Guan v. I.N.S., 453 F.3d 129, 140 (2d Cir. 2006). Here, the
5 IJ observed that when Lin was asked whether he had been in
6 South America in 2008, after having just testified that he
7 had never left China before 2010, he became extremely
8 nervous and began to laugh. The IJ further noted that Lin
9 did not similarly react during any of his other testimony,
10 despite stating that he was nervous throughout the hearing.
11 We defer to the IJ’s assessment of Lin’s demeanor,
12 particularly as it is further supported by “specific
13 example[s] of inconsistent testimony” regarding whether Lin
14 had ever left China before 2010. See Li Hua Lin v. U.S.
15 Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006); see also
16 Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d
17 Cir. 2005).
18 Furthermore, Lin’s claim that the agency erred because
19 it did not consider his background evidence is without
20 merit. See Xiao Ji Chen, 471 F.3d at 338 n.17 (presuming
21 that the “IJ has taken into account all of the evidence . .
22 . unless the record compellingly suggests otherwise”). The
23 IJ found that Lin had failed to credibly establish that he
5
1 was a practicing Christian. See Yan Chen, 417 F.3d at 272-
2 73. Accordingly, the agency’s adverse credibility
3 determination is supported by substantial evidence. Xiu Xia
4 Lin, 534 F.3d at 167.
5 III. Remand
6 We review the BIA’s denial of a motion to remand for
7 abuse of discretion. Li Yong Cao v. Dep’t of Justice, 421
8 F.3d 149, 156-57 (2d Cir. 2005); Matter of Coelho, 20 I&N
9 Dec. 464, 474 (BIA 1992). Here, the agency did not abuse
10 its discretion in denying Lin’s motion to remand, as the
11 medical document he submitted was previously available. See
12 8 C.F.R. § 1003.2(c)(1). While Lin argues the medical
13 document was previously unavailable because he did not ask
14 family members to obtain it until after his hearing, this
15 does not mean the document itself was unavailable. Id.
16 Furthermore, even if the document constituted new evidence,
17 it would not be “material,” as it does not address Lin’s
18 credibility problems, which were fatal to his application.
19 Li Hua Lin, 453 F.3d at 107.
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, the pending motion
22 for a stay of removal in this petition is DISMISSED as moot.
23 Any pending request for oral argument in this petition is
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1 DENIED in accordance with Federal Rule of Appellate
2 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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