09-1291-ag
Lin v. Holder
BIA
Balasquide, IJ
A098 940 029
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 7 th day of January, two thousand ten.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 DE DONG LIN,
14 Petitioner,
15
16 v. 09-1291-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Yee Ling Poon; Robert Duk-Hwan Kim,
24 New York, New York.
25
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; John C. Cunningham, Senior
3 Litigation Counsel; Remi Adalemo,
4 Attorney, Office of Immigration
5 Litigation, United States Department
6 of Justice, Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED, that the petition for review
11 is DENIED.
12 De Dong Lin, a native and citizen of the People’s
13 Republic of China, seeks review of a March 11, 2009 order of
14 the BIA, affirming the December 7, 2006 decision of
15 Immigration Judge (“IJ”) Javier E. Balasquide, which denied
16 his application for asylum, withholding of removal, and
17 relief under the Convention Against Torture (“CAT”). In re
18 De Dong Lin, No. A098 940 029 (B.I.A. Mar. 11, 2009), aff’g
19 No. A098 940 029 (Immig. Ct. N.Y. City Dec. 7, 2006). We
20 assume the parties’ familiarity with the underlying facts
21 and procedural history in this case.
22 As an initial matter, although Lin is challenging the
23 denial of relief in “asylum-only” proceedings, as opposed to
24 an actual removal order, we nevertheless have jurisdiction
25 under 8 U.S.C. § 1252(a)(1) because the denial of relief in
26 these circumstances is the functional equivalent of a
2
1 removal order. See Kanacevic v. INS, 448 F.3d 129, 134 (2d
2 Cir. 2006).
3 When the BIA agrees with the IJ’s conclusion that a
4 petitioner is not credible and, without rejecting any of the
5 IJ’s grounds for decision, emphasizes particular aspects of
6 that decision, we review both the BIA’s and IJ’s opinions --
7 or more precisely, we review the IJ’s decision including the
8 portions not explicitly discussed by the BIA. Yun-Zui Guan
9 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). We review
10 the agency’s factual findings, including adverse credibility
11 findings, under the substantial evidence standard. 8 U.S.C.
12 § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377,
13 379 (2d Cir. 2007). We review de novo questions of law and
14 the application of law to undisputed fact. Salimatou Bah v.
15 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). For applications
16 governed by the REAL ID Act of 2005, the agency may,
17 considering the totality of the circumstances, base a
18 credibility finding on an asylum applicant’s demeanor, the
19 plausibility of his or her account, and inconsistencies in
20 his or her statements, without regard to whether they go “to
21 the heart of the applicant’s claim.” 8 U.S.C.
22 § 1158(b)(1)(B)(iii); see also Matter of J-Y-C-, 24 I. & N.
3
1 Dec. 260, 265 (BIA 2007).
2 Analyzed under the REAL ID Act, the agency’s adverse
3 credibility determination was supported by substantial
4 evidence. In finding Lin’s testimony not credible, the IJ
5 relied in part on his demeanor, noting that his testimony
6 was hesitant and unconvincing, and that he was evasive at
7 times and unresponsive. Because the IJ was in the best
8 position to observe Lin’s manner while testifying, we defer
9 to his demeanor finding. See Zhou Yun Zhang v. INS, 386
10 F.3d 66, 73-74 (2d Cir. 2004) overruled in part on other
11 grounds by Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d
12 296, 305 (2d Cir. 2007) (en banc).
13 The IJ also reasonably relied on a number of
14 inconsistencies in Lin’s testimony. For example, the IJ
15 noted that after Lin initially testified that his father
16 paid to bail him out of detention using money that was in
17 his home, when it was pointed out that the bail amount
18 exceeded his father’s yearly income, Lin changed his
19 testimony and stated that his father borrowed the money.
20 Similarly, the IJ observed that although Lin’s asylum
21 application indicated that he went into hiding after he was
22 released from detention, he testified that he spent five or
4
1 six days with his parents before fleeing. Lin argues that
2 these and other inconsistencies can be explained away by
3 interpreting the evidence in a different manner. Yet, our
4 review does not permit us to ask whether Lin’s
5 interpretation of the evidence is plausible. Rather, we ask
6 only whether the IJ’s interpretation was erroneous because
7 it was impermissible. Here, we cannot find that it was.
8 See Xian Tuan Ye v. Dep’t of Homeland Security, 446 F.3d
9 289, 294 (2d Cir. 2006) (“our review does not permit us to
10 engage in an independent evaluation of the cold record or
11 ask ourselves whether, if we were sitting as fact finders,
12 we would credit or discredit an applicant’s testimony”);
13 Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where
14 there are two permissible views of the evidence, the
15 factfinder’s choice between them cannot be clearly
16 erroneous.”) (quoting Anderson v. Bessemer City, 470 U.S.
17 564, 574, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985)).
18 The IJ also did not err in drawing an adverse inference
19 from Lin’s inability to name his purported roommate of one
20 year, the only witness to Lin’s Falun Gong practice in the
21 United States, after repeated efforts by the IJ to elicit
22 the name. See 8 U.S.C. § 1158(b)(1)(B)(iii). Contrary to
23 Lin’s arguments, the reasons for the IJ’s incredulity are
5
1 evident. See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d
2 Cir. 2007). Moreover, the IJ was not required to credit
3 Lin’s explanation that he referred to his roommate as
4 “little brother.” See Majidi v. Gonzales, 430 F.3d 77, 80-
5 81 (2d Cir. 2005).
6 Because Lin’s testimony was not otherwise credible, the
7 IJ did not err, under the provisions of the REAL ID Act, in
8 drawing an adverse inference as to Lin’s credibility from
9 his failure to obtain corroboration of his claims. See 8
10 U.S.C. § 1158(b)(1)(B)(ii); Biao Yang v. Gonzales, 496 F.3d
11 268, 273 (2d Cir. 2007).
12 Under the REAL ID Act, these findings were sufficient
13 to support the agency’s adverse credibility determination.
14 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin, 534 F.3d
15 at 167. Because the agency’s adverse credibility
16 determination was supported by substantial evidence, it
17 reasonably denied Lin’s applications for asylum, withholding
18 of removal, and CAT relief, to the extent all three claims
19 shared the same factual predicate. * See Paul v. Gonzales,
*
We are without jurisdiction to review Lin’s
unexhausted due process claim. See 8 U.S.C.
§ 1252(d)(1). We are unpersuaded by Lin’s argument that
his due process claim is “subsidiary” to that which he
raised before the BIA. See Gill v. INS, 420 F.3d 82, 87
(2d Cir. 2005).
6
1 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S.
2 Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2006).
3 Finally, we deem abandoned Lin’s CAT claim based on his
4 purportedly illegal departure from China. See Gui Yin Liu
5 v. INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007).
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. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17 By:___________________________
7