Jin Lin v. Lynch

15-400
Lin v. Lynch
BIA
Poczter, IJ
A200 239 001

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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 10th day of August, two thousand sixteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 BARRINGTON D. PARKER,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 JIN LIN,
14 Petitioner,
15
16 v. 15-400
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Theodore N. Cox, New York, NY.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Terri J.
27 Scadron, Assistant Director; Manuel
28 A. Palau, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 is

4 DENIED.

5 Petitioner Jin Lin, a native and citizen of the People’s

6 Republic of China, seeks review of a January 22, 2015, decision

7 of the BIA, affirming a December 14, 2012, decision of an

8 Immigration Judge (“IJ”) denying Lin’s application for asylum,

9 withholding of removal, and relief under the Convention Against

10 Torture (“CAT”). In re Jin Lin, No. A200 239 001 (B.I.A. Jan.

11 22, 2015), aff’g No. A200 239 001 (Immig. Ct. N.Y. City Dec.

12 14, 2012). We assume the parties’ familiarity with the

13 underlying facts and procedural history in this case.

14 Under the circumstances of this case, we have considered

15 both the IJ’s and the BIA’s opinions “for the sake of

16 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

17 524, 528 (2d Cir. 2006). The applicable standards of review

18 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin

19 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

20 For asylum applications, like Lin’s, governed by the REAL

21 ID Act, the agency may, “[c]onsidering the totality of the

22 circumstances,” base an adverse credibility determination on
2
1 an asylum applicant’s “demeanor, candor, or responsiveness,”

2 and on inconsistencies within the applicant’s statements,

3 “without regard to whether” they go “to the heart of the

4 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

5 Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s credibility

6 determination unless, from the totality of the circumstances,

7 it is plain that no reasonable fact-finder could make such an

8 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.

9 Substantial evidence supports the adverse credibility

10 determination, which was based on inconsistent and unclear

11 testimony calling into question whether Lin understood the

12 basis of his asylum claim, and by extension, calling the

13 credibility of the claim into question. Lin alleged that he

14 has been, and would be, persecuted for attending an underground

15 church. However, when questioned initially, he said he would

16 attend a government-sponsored church. Then when questioned by

17 his own counsel, he said he was unwilling to go to a government

18 church. But when questioned by the IJ, he said he did not know

19 the difference between the two churches, stated he would maybe

20 go to both, and finally stated that he would not attend at all

21 if he returned to China. Lin did not provide compelling

22 explanations for these inconsistencies because his responses
3
1 that he did not know the difference, would attend both, or would

2 not attend at all, introduced more confusion. Majidi v.

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

4 The adverse credibility determination is further supported

5 by the IJ’s demeanor finding, to which we defer. Id. at 81 n.1;

6 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.

7 2006) (“We can be still more confident in our review of

8 observations about an applicant’s demeanor where, as here, they

9 are supported by specific examples of inconsistent

10 testimony.”).

11 Moreover, Lin’s failure to corroborate his testimony with

12 evidence further undermined his credibility. Biao Yang v.

13 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The IJ did not abuse

14 her discretion in declining to give weight to his letters. Xiao

15 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

16 2006) (holding that the weight given corroborating evidence

17 lies largely with discretion of agency); see also Y.C. v.

18 Holder, 741 F.3d 324, 334 (2d Cir. 2013).

19 In light of the inconsistent and confusing testimony

20 regarding the basis for Lin’s fear of persecution, the totality

21 of the circumstances supports the agency’s adverse credibility

22 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
4
1 Lin, 534 F.3d at 167. Because asylum, withholding of removal,

2 and CAT relief all relied on the same factual predicate, the

3 adverse credibility determination is dispositive. Paul v.

4 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

5 For the foregoing reasons, the petition for review is

6 DENIED. Any pending request for oral argument in this petition

7 is DENIED in accordance with Federal Rule of Appellate Procedure

8 34(a)(2), and Second Circuit Local Rule 34.1(b).

9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk

5