13-2099
Jin v. Lynch
BIA
Sichel, IJ
A087 970 728
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 Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
1st day of October, two thousand fifteen.
PRESENT:
REENA RAGGI,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges.
_____________________________________
SHUNAI JIN,
Petitioner,
v. 13-2099
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,*
Respondent.
_____________________________________
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch is automatically substituted
for former Attorney General Eric H. Holder, Jr. as Respondent.
FOR PETITIONER: Guang Jun Gao, Law Offices of Guang
Jun Gao, LLP, Flushing, New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Erica B. Miles, Senior
Litigation Counsel; C. Frederick
Sheffield, Trial Attorney, Office of
Immigration Litigation, 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.
Petitioner Shunai Jin, a native and citizen of the People’s
Republic of China, seeks review of a May 7, 2013 decision of
the BIA, affirming the May 30, 2012 decision of an Immigration
Judge (“IJ”), denying her application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). See In re Shunai Jin, No. A087 970 728 (B.I.A. May
7, 2013), aff’g No. A087 970 728 (Immig. Ct. N.Y.C. May 30,
2012). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
Under the circumstances of this case, we have reviewed both
the BIA’s and IJ’s opinions “‘for the sake of completeness.’”
2
Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (quoting
Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006)). The
applicable standards of review are well established. See
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009).
For asylum applications like Jin’s, governed by the REAL
ID Act, the agency may, “[c]onsidering the totality of the
circumstances . . . base a credibility determination on”
inconsistencies in an applicant’s statements and other record
evidence “without regard to whether” they go “to the heart of
the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008).
We give “particular deference” to an IJ’s credibility
determinations where, as here, “the IJ’s ability to observe the
witness’s demeanor places her in the best position to evaluate
whether apparent problems in the witness’s testimony suggest
a lack of credibility or, rather, can be attributed to an
innocent cause such as difficulty understanding the question.”
Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.
2006).
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In this case, the totality of the circumstances supports
the agency’s adverse credibility determination. The IJ
reasonably relied on Jin’s failure to mention her month-long
hospitalization in her asylum application. Jin alleged severe
physical mistreatment by Chinese police, but then testified
inconsistently with her application concerning that
mistreatment. Thus, the IJ “‘identified a material
inconsistency in an aspect of [Jin]’s story that served as an
example of the very persecution from which [she] sought
asylum.’” Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,
295 (2d Cir. 2006) (quoting Majidi v. Gonzales, 430 F.3d 77,
80 (2d Cir. 2005)); see also Xiu Xia Lin, 534 F.3d at 166 n.3
(explaining that inconsistency and omission are “functionally
equivalent”). When asked why she omitted her hospitalization
from her application, Jin stated that she was not asked about
it and did not think it was important. Considering the length
of Jin’s hospital stay and its direct connection to the main
harm alleged in her asylum application, the IJ was not required
to credit this explanation. See Majidi, 430 F.3d at 80-81.
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The IJ also reasonably found Jin’s description of the
medical document she failed to submit both inconsistent and
incredible. Jin argues she was confused as to which document
she was being asked to describe. But an IJ’s inconsistency
finding may not be disturbed unless “a reasonable adjudicator
would be compelled to conclude” that there was no inconsistency,
8 U.S.C. § 1252(b)(4)(B), and the transcript here does not
compel such a conclusion. There was no reason for Jin to
believe she was being asked to describe a document other than
the medical records, and the IJ was in the best position to
evaluate whether Lin’s testimony reflected credibility issues
or, rather, confusion regarding the questions being asked. See
Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d at 109.
Accordingly, we conclude that the agency’s adverse credibility
finding was supported by substantial evidence.1
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,
1
In light of our determination, we need not address the agency’s
alternative and independent basis for denying relief, namely,
that Jin did not adequately corroborate her claim with available
evidence as required by the REAL ID Act.
5
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 of Court
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