09-3638-ag
Lin v. Holder
BIA
Gordon-Uruakpa, IJ
A098 712 790
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.
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 May, two thousand ten.
PRESENT:
JOSÉ A. CABRANES,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_______________________________________
BAO YI LIN,
Petitioner,
v. 09-3638-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Norman Kwai Wing Wong, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Nancy Friedman, Senior
Litigation Counsel; Virginia Lum,
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Bao Yi Lin, a native and citizen of the People’s
Republic of China, seeks review of an August 12, 2009, order
of the BIA affirming the November 28, 2007, decision of
Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa, which
denied his application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In
re Bao Yi Lin, No. A098 712 790 (B.I.A. Aug. 12, 2009),
aff’g No. A098 712 790 (Immig. Ct. N.Y. City Nov. 28, 2007).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we review the
IJ’s decision as supplemented by the BIA’s decision. See
Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008); Manzur v. U.S. Dep't of
Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
I. Asylum & Withholding of Removal
For asylum applications governed by the REAL ID Act,
the agency may, considering the totality of the
circumstances, base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his or her account, and inconsistencies in
his or her statements, without regard to whether they go “to
the heart of the applicant’s claim.” See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Here,
substantial evidence supports the agency’s adverse
credibility determination.
The IJ reasonably relied on Lin’s omission from his
asylum application of any mention of the two alleged arrests
about which he testified at his merits hearing. See
8 U.S.C. § 1158(b)(1)(B)(iii). Likewise, we defer to the
IJ’s determination that Lin’s unresponsive demeanor when
asked what he said to family planning officials that
resulted in his arrest further undermined his credibility.
2
See Shu Wen Sun v. Bd. of Immigration Appeals, 510 F.3d 377,
380-81 (2d Cir. 2007). Such were proper bases for the IJ’s
adverse credibility determination. 1 See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. To the
extent that Lin offered explanations for these
discrepancies, the IJ was not compelled to credit them. See
Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
Ultimately, substantial evidence supports the IJ’s
adverse credibility determination. See Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006). Thus,
the agency properly denied Lin’s asylum and withholding of
removal claims. See Paul v. Gonzales, 444 F.3d 148, 154 (2d
Cir. 2006).
II. CAT Relief
The IJ did not err in finding that, given Lin’s already
questionable testimony, his failure to corroborate his claim
that he owed money in China to smugglers further undermined
the veracity of that claim. See Biao Yang v. Gonzales, 496
F.3d 268, 273 (2d Cir. 2007). We similarly find no error in
the IJ’s finding that the background evidence contradicts
Lin’s claim that he would more likely than not be tortured
in China based on his illegal entry into the United States.
Indeed, the 2007 Asylum Profile for China as well as other
background evidence, all of which the IJ quoted in her
decision, clearly indicate that torture for such activities
is unlikely to occur. See Manzur, 494 F.3d at 289; see also
Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60
1
We need not decide whether Lin’s characterizations
of himself as an “illegal immigrant” support the IJ’s
finding that Lin testified inconsistently regarding
whether he feared returning to China because he illegally
departed China or because he illegally entered the United
States. Even if we were left with a “firm conviction of
error” on that point, see Wensheng Yan v. Mukasey, 509
F.3d 63, 67 (2d Cir. 2007), remand would be futile
because the IJ’s credibility determination was, as a
whole, supported by substantial evidence, see 8 U.S.C.
§ 1158(b)(1)(B)(iii).
3
(2d Cir. 2005); Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-
44 (2d Cir. 2003).
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).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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