Lin v. Holder

09-3076-ag
Lin v. Holder
BIA
Gordon-Uruakpa, IJ
A098 714 662
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 11 th day of March, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JOSEPH M. McLAUGHLIN,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _______________________________________
13
14 JUAN LIN,
15 Petitioner,
16
17 v. 09-3076-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Yu Zhang, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Allen W. Hausman, Senior
28 Litigation Counsel; Sharon M. Clay,
29 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 Juan Lin, a native and citizen of the People’s Republic

10 of China, seeks review of a June 22, 2009, order of the BIA,

11 affirming the December 23, 2005, decision of Immigration

12 Judge (“IJ”) Vivienne Gordon-Uruakpa, which denied her

13 application for asylum, withholding of removal, and relief

14 under the Convention Against Torture (“CAT”). In re Juan

15 Lin, No. A098 714 662 (B.I.A. Jun. 22, 2009), aff’g No. A098

16 714 662 (Immig. Ct. N.Y. City Dec. 23, 2005). We assume the

17 parties’ familiarity with the underlying facts and

18 procedural history in this case.

19 Under the circumstances of this case, we review the

20 IJ’s decision. See Chun Gao v. Gonzales, 424 F.3d 122, 124

21 (2d Cir. 2005) We review the agency’s factual findings,

22 including adverse credibility determinations, under the

23 substantial evidence standard. See 8 U.S.C.

24 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

2
1 66 (2d Cir. 2008). 1

2 Substantial evidence supports the IJ’s adverse

3 credibility determination. In finding Lin not credible, the

4 IJ noted that although she described two arrests in her

5 asylum application, she testified to only one on direct

6 examination. See Xiu Xia Lin, 534 F.3d at 165-66. When

7 asked why she failed to mention the other, Lin claimed that

8 she was nervous. A reasonable factfinder would not be

9 compelled to accept nervousness as an explanation for Lin’s

10 failure to mention one of the two arrests that allegedly

11 drove her to flee her country and seek asylum. See Majidi

12 v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

13 Additionally, the IJ reasonably relied on Lin’s

14 inconsistent testimony regarding whether and when she

15 stopped practicing Falun Gong. While Lin testified that

16 nothing happened to her in China after her 1999 arrest

17 because she stopped practicing Falun Gong, a letter from her

18 father stated that she was still practicing Falun Gong in

1
The asylum application in this case is governed by
the amendments made to the Immigration and Nationality
Act by the REAL ID Act of 2005, Pub. L. No. 109-13, 119
Stat. 231 (2005). See Title I, § 101(a)(3) of the Act,
119 Stat. 231, 303 (amending 8 U.S.C. § 1158); see also
Xiu Xia Lin, 534 F.3d at 165.

3
1 2004. Again, although Lin claimed that she was nervous, the

2 IJ did not err in rejecting that explanation. See Majidi,

3 430 F.3d at 80-81.

4 Lin argues for the first time in her brief to this

5 Court that the IJ erred in making her adverse credibility

6 determination because: (1) she failed to consider that the

7 Chinese language is difficult to translate; and (2) she

8 erred in relying on Lin’s lack of doctrinal knowledge about

9 Falun Gong in finding her not credible. We decline to

10 consider these unexhausted arguments. See Lin Zhong v. U.S.

11 Dep’t of Justice, 480 F.3d 104, 107 n.1, 122 (2d Cir. 2007).

12 In any event, Lin points to no specific problem with the

13 translation during her hearing and the transcript reveals no

14 apparent translation issues. Moreover, it was Lin’s

15 inconsistent testimony, not her lack of doctrinal knowledge,

16 that the IJ relied upon in finding Lin to be not credible.

17 Ultimately, because a reasonable fact-finder would not

18 be compelled to conclude to the contrary, we find that the

19 IJ’s adverse credibility determination was supported by

20 substantial evidence. See Xiu Xia Lin, 534 F.3d at 165-66.

21 Thus, the agency’s denial of Lin’s application for asylum

22 was proper. See 8 U.S.C. § 1158(b)(1)(B)(iii). Moreover,

4
1 because Lin based her claims for withholding of removal and

2 CAT relief on the same factual predicate as her asylum

3 claim, those claims necessarily fail. 2 See Paul v.

4 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.

5 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

6 For the foregoing reasons, the petition for review is

7 DENIED. As we have completed our review, any stay of

8 removal that the Court previously granted in this petition

9 is VACATED, and any pending motion for a stay of removal in

10 this petition is DISMISSED as moot.

11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
15

2
While Lin did not specifically address withholding
of removal and CAT relief in her brief to the BIA,
because she challenged the IJ’s adverse credibility
determination, which was dispositive of each of her
claims, we decline the Government’s invitation to dispose
of these claims on exhaustion grounds.
5