Yingchun Jin v. Holder

12-3159 Jin v. Holder BIA Nelson, IJ A099 328 460 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 6th day of January, two thousand fourteen. 5 6 PRESENT: 7 ROBERT D. SACK, 8 DENNY CHIN, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 YINGCHUN JIN, 14 Petitioner, 15 16 v. 12-3159 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Yingchun Jin, Pro Se, Flushing, New 24 York 25 26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 27 Attorney General; Greg D. Mack, 28 Senior Litigation Counsel; Shahrzad 29 Baghai, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, D.C. 4 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Yingchun Jin, a native and citizen of the People’s 10 Republic of China, seeks review of a July 13, 2012, decision 11 of the BIA affirming the February 3, 2011, decision of 12 Immigration Judge (“IJ”) Barbara A. Nelson, which denied her 13 application for asylum, withholding of removal, and relief 14 under the Convention Against Torture (“CAT”). In re 15 Yingchun Jin, No. A099 328 460 (B.I.A. July 13, 2012), aff’g 16 No. A099 328 460 (Immig. Ct. N.Y. City Feb. 3, 2011). We 17 assume the parties’ familiarity with the underlying facts 18 and procedural history in this case. 19 Under the circumstances of this case, we have reviewed 20 both the IJ’s and the BIA’s opinions. See Yun-Zui Guan v. 21 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable 22 standards of review are well-established. See 8 U.S.C. 23 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 24 510, 513 (2d Cir. 2009). 2 1 For applications such as Jin’s, governed by the 2 amendments made to the Immigration and Nationality Act by 3 the REAL ID Act of 2005, the agency may, “[c]onsidering the 4 totality of the circumstances,” base a credibility finding 5 on the plausibility of an applicant’s account, as well as 6 inconsistencies in her statements, without regard to whether 7 they go “to the heart of the applicant’s claim.” 8 U.S.C. 8 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see Xiu Xia Lin v. 9 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam). 10 Furthermore, for purposes of a credibility determination, 11 “[a]n inconsistency and an omission are . . . functionally 12 equivalent.” Xiu Xia Lin, 534 F.3d at 166. We “defer [ ] 13 to an IJ’s credibility determination unless, from the 14 totality of the circumstances, it is plain that no 15 reasonable fact-finder could make such an adverse 16 credibility ruling.” Id. at 167. In this case, the agency 17 reasonably based its adverse credibility finding on the 18 discrepancies between Jin’s asylum application and 19 testimony, the discrepancies between her testimony and the 20 evidence proffered by her sister, the negative demeanor of 21 Jin and her sister, and a failure to provide corroborating 22 evidence. 3 1 Jin asserted in her asylum application that her family 2 in China had not experienced any harm, but during her 3 testimony, she stated that the police had beaten her husband 4 in August 2009 due to her participation in the Chinese 5 Democracy and Justice Party (“CDJP”). She also testified 6 that she had written two articles in Chinese criticizing the 7 Chinese government for the CDJP and that she had shared her 8 hand-written drafts with her sister and had taken her sister 9 to the CDJP office in Flushing to see the final versions 10 posted on the party website. However, her sister testified 11 that she had learned of Jin’s articles and CDJP membership 12 when her roommate showed her the party website at home and 13 she saw Jin’s photograph and two articles written in Korean. 14 These inconsistencies regarding the basis for Jin’s fear of 15 persecution provide substantial evidence for the agency’s 16 adverse credibility determination. See Xiu Xia Lin, 534 17 F.3d at 166, 167. 18 The adverse credibility determination is bolstered by 19 the IJ’s observations regarding Jin and her sister’s 20 demeanor and Jin’s lack of corroborating evidence. We 21 accord particular deference to the trier of fact’s 22 assessment of demeanor, as she was in the best position to 4 1 observe their manner while testifying. See Tu Lin v. 2 Gonzales, 446 F.3d 395, 400 (2d Cir. 2006). And, Jin’s 3 failure to provide reasonably available evidence to 4 corroborate her claim prevented her from rehabilitating the 5 testimony that had been called into question. See Biao Yang 6 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Furthermore, 7 the agency reasonably declined to credit Jin’s explanations 8 for failing to provide corroborating evidence. See Majidi 9 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). 10 Given the discrepancies, negative demeanor, and lack of 11 corroboration, the totality of the circumstances supports 12 the agency’s credibility determination. See 8 U.S.C. 13 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. As all 14 of Jin’s claims share the same factual basis, the adverse 15 credibility finding necessarily precludes success on asylum, 16 withholding of removal, and CAT relief. See Paul v. 17 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). 18 For the foregoing reasons, the petition for review is 19 DENIED. As we have completed our review, any stay of 20 removal that the Court previously granted in this petition 21 is VACATED, and any pending motion for a stay of removal in 22 this petition is DISMISSED as moot. Any pending request for 23 oral argument in this petition is DENIED in accordance with 5 1 Federal Rule of Appellate Procedure 34(a)(2), and Second 2 Circuit Local Rule 34.1(b). 3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 6