09-1663-ag
Lin v. Holder
BIA
Romig, IJ
A 099 672 801
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 8 th day of February, two thousand ten.
5
6 PRESENT:
7 JOHN M. WALKER, Jr.,
8 JOSÉ A. CABRANES,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _______________________________________
12
13 DE HE LIN,
14 Petitioner,
15
16 v. 09-1663-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Michael Brown, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Daniel E. Goldman, Senior
27 Litigation Counsel; Matthew A.
28 Spurlock, Attorney, Office of
29 Immigration Litigation, Washington,
30 D.C.
31
32
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 is
4 DENIED.
5 Petitioner De He Lin, a native and citizen of China,
6 seeks review of the March 26, 2009 order of the BIA affirming
7 the October 17, 2007 decision of Immigration Judge (“IJ”)
8 Jeffrey L. Romig denying Lin’s application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Lin De Hao, No. A 099 672 801
11 (B.I.A. Mar. 26, 2009), aff’g No. A 099 672 801 (Immig. Ct.
12 N.Y. City Oct. 17, 2007). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we review both the
15 IJ’s and the BIA’s decisions. See Yan Chen v. Gonzales, 417
16 F.3d 268, 271 (2d Cir. 2005). We review the agency’s
17 determination under the “substantial evidence” standard.
18 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
19 The IJ’s adverse credibility determination was supported
20 by substantial evidence. As a preliminary matter, Lin’s
21 argument that the IJ erred by relying on inconsistencies too
22 minor and unrelated to his claim is without merit. Under the
23 REAL ID Act, which applies to Lin’s application for relief,
24 an IJ may rely on any inconsistency when making a credibility
2
1 determination without regard to whether that inconsistency
2 goes to the heart of the applicant’s claim. See 8 U.S.C.
3 § 1158(b)(1)(B)(iii).
4 In addition, we uphold the IJ’s finding that the abortion
5 certificate Lin submitted reflected adversely on his
6 credibility. Id. Lin argues that the IJ engaged in
7 impermissible speculation regarding the authenticity of the
8 certificate and placed excessive reliance on the State
9 Department Report in the record. However, we have held that
10 an IJ may properly disbelieve an asylum applicant’s claim that
11 the Chinese government issued his wife a so-called “abortion
12 certificate” following her involuntary abortion, when the
13 State Department reports that its officials are “unaware” of
14 the Chinese government issuing such certificates for anything
15 other than voluntary abortions. See Tu Lin v. Gonzales, 446
16 F.3d 395, 400 (2d Cir. 2006).
17 The IJ also properly found that Lin’s inconsistent
18 explanations regarding his reason for obtaining a passport in
19 China undermined his credibility. See 8 U.S.C.
20 § 1158(b)(1)(B)(iii). Initially, Lin testified that he
21 obtained the passport because he wanted to be smuggled into
22 the United States. However, when the IJ pointed out that Lin
23 received the passport before his alleged difficulties with
24 Chinese authorities began, Lin replied that he got the
3
1 passport so that he could go on vacation. When the IJ asked
2 Lin if he planned to go on vacation at that time, he first
3 replied “no,” but then changed his answer to “yes,” stating
4 that he “planned to go on vacation.”
5 Ultimately, substantial evidence supported the IJ’s
6 adverse credibility determination. See 8 U.S.C. §
7 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 167. Therefore,
8 because the only evidence that Lin was likely to be persecuted
9 or tortured depended upon his credibility, the adverse
10 credibility determination in this case necessarily precluded
11 success on his claims for asylum, withholding of removal, and
12 CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
13 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
14 523 (2d Cir. 2005).
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any pending motion
17 for a stay of removal in this petition is DISMISSED as moot.
18 Any pending request for oral argument in this petition is
19 DENIED in accordance with Federal Rule of Appellate Procedure
20 34(a)(2), and Second Circuit Local Rule 34.1(b).
21
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
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