Jin Yu Lin v. Holder

09-3570-ag Lin v. Holder BIA DeFonzo, IJ A095 710 068 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 1 st day of September, two thousand ten. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 JON O. NEWMAN, 10 JOSÉ A. CABRANES, 11 Circuit Judges. 12 _______________________________________ 13 14 JIN YU LIN, 15 Petitioner, 16 17 v. 09-3570-ag 18 NAC 19 20 ERIC H. HOLDER, JR., UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent. 23 ______________________________________ 24 25 FOR PETITIONER: Oleh R. Tustaniwsky, Hualian Law 26 Offices, New York, New York. 27 28 FOR RESPONDENT: Tony West, Assistant Attorney 29 General, Civil Division; Francis W. 30 Fraser, Senior Litigation Counsel; 31 Linda Y. Cheng, Trial Attorney, 32 Office of Immigration Litigation, 33 U.S. Department of Justice, 34 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, Jin Yu Lin, a native and citizen of the 6 People’s Republic of China, seeks review of a July 24, 2009, 7 order of the BIA affirming the November 6, 2007, decision of 8 Immigration Judge (“IJ”) Paul A. DeFonzo denying 9 petitioner’s application for asylum, withholding of removal, 10 and relief under the Convention Against Torture (“CAT”). In 11 re Jin Yu Lin, No. A 095 710 068 (B.I.A. July 24, 2009), 12 aff’g No. A 095 710 068 (Immig. Ct. N.Y. City Nov. 6, 2007). 13 We assume the parties’ familiarity with the underlying facts 14 and procedural history of the case. 15 Under the circumstances of this case, we consider both 16 the IJ’s and the BIA’s opinions. See Jigme Wangchuck v. 17 DHS, 448 F.3d 524, 528 (2d Cir. 2006). The applicable 18 standards of review are well-established. Corovic v. 19 Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Salimatou Bah v. 20 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). 21 Substantial evidence supports the IJ’s adverse 22 credibility determination. In making that determination, 23 the IJ found that Lin: (1) testified inconsistently 2 1 regarding the incidents that formed the basis of her claim; 2 and (2) failed to provide sufficient corroboration. The BIA 3 affirmed the IJ’s adverse credibility finding, holding that 4 the IJ properly identified material inconsistencies and 5 omissions which supported the adverse credibility 6 determination. We are not compelled to conclude to the 7 contrary. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d 8 Cir. 2005). 9 Although Lin argues that she adequately explained her 10 inconsistent testimony, no reasonable factfinder would have 11 been compelled to credit her explanations. See id. 12 Moreover, the IJ reasonably declined to afford Lin’s 13 corroborative evidence weight because the friends who wrote 14 letters were not available for cross-examination and because 15 the letters were insufficient to overcome the numerous 16 inconsistencies and omissions in Lin’s testimony. See Xiao 17 Ji Chen v U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 18 2006) (finding that the weight afforded to the applicant’s 19 evidence in immigration proceedings lies largely within the 20 discretion of the agency). 21 Inasmuch as each of Lin’s claims share the same factual 22 predicate, the IJ’s adverse credibility determination is 3 1 fatal to her application for asylum, withholding of removal, 2 and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 157 (2d 3 Cir. 2006). 4 For the foregoing reasons, the petition for review is 5 DENIED. As we have completed our review, any pending motion 6 for a stay of removal in this petition is DISMISSED as moot. 7 Any pending request for oral argument in this petition is 8 DENIED in accordance with Federal Rule of Appellate 9 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12 13 4