15-3712
Lin v. Sessions
BIA
Segal, IJ
A088 996 770
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 2nd day of May, two thousand seventeen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 WENXIN LIN,
14 Petitioner,
15
16 v. 15-3712
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Edward
27 E. Wiggers, Senior Litigation
28 Counsel; Aimee J. Carmichael, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 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 Wenxin Lin, a native and citizen of the People’s
6 Republic of China, seeks review of an October 29, 2015, decision
7 of the BIA affirming a May 28, 2014, decision of an Immigration
8 Judge (“IJ”) denying Lin’s application for asylum, withholding
9 of removal, and relief under the Convention Against Torture
10 (“CAT”). In re Wenxin Lin, No. A088 996 770 (B.I.A. Oct. 29,
11 2015), aff’g No. A088 996 770 (Immig. Ct. N.Y. City May 28,
12 2014). We assume the parties’ familiarity with the underlying
13 facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed both
15 the BIA’s and IJ’s decisions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). We first address Lin’s challenge to the agency’s
18 exclusion of the amended translation of his aunt’s letter and
19 then discuss whether the adverse credibility determination is
20 supported by substantial evidence.
21 I. Evidentiary Challenge
22 Lin’s testimony was inconsistent with the original
23 translation of a letter that he submitted from his aunt, in that
2
1 Lin testified that he was beaten (but not arrested) during a
2 2011 incident. His aunt’s letter, however, indicated that he
3 was arrested during the 2011 encounter. After the hearing, Lin
4 submitted an amended translation of his aunt’s letter that
5 omitted any reference to a 2011 arrest. The IJ found that the
6 amended translation was unreliable and declined to admit it into
7 evidence.
8 In his petition for review, Lin argues that the exclusion
9 of the amended translation was an abuse of discretion and
10 violated his due process rights. We disagree. In removal
11 proceedings, the admissibility of evidence is tied to its
12 reliability and trustworthiness. Felzcerek v. INS, 75 F.3d 112,
13 115 (2d Cir. 1996). The IJ reasonably determined that the
14 amended translation was unreliable because a court interpreter
15 confirmed that the original translation was correct and Lin did
16 not explain why the amendment was appropriate; thus, she did
17 not abuse her discretion. See Dedji v. Mukasey, 525 F.3d 187,
18 191 (2d Cir. 2008). Moreover, declining to admit the evidence
19 did not deprive Lin of his due process rights because he had
20 the opportunity for a meaningful hearing before the IJ. See
21 Augustin v. Sava, 735 F.2d 32, 37 (2d Cir. 1984); Burger v.
22 Gonzales, 498 F.3d 131, 134 (2d Cir. 2007).
3
1 Lin now argues that the court interpreter was not competent
2 to translate his aunt’s letter, arguing that an “interpreter”
3 may be competent to translate speech but not writings. He did
4 not raise that argument before the BIA. Thus, he has failed to
5 exhaust it. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
6 104, 122 (2d Cir. 2007).
7 Even if it had been exhausted, the argument is without
8 merit. The agency’s regulations require interpreters to be
9 competent in both oral interpretation and written translation.
10 See 8 C.F.R. § 1003.22 (“Any person acting as an interpreter
11 in a hearing shall swear or affirm to interpret and translate
12 accurately . . . .” (emphasis added)).* The IJ described the
13 interpreter’s qualifications, observing that he had worked for
14 the court for at least ten years and was a certified translator.
15 Nothing in the record suggests that the interpreter was unable
16 to translate written documents. His other contention, that the
17 interpreter was biased by his earlier memory of the initial
18 hearing, is unavailing. The interpreter who addressed the
19 re-translation issue at the second hearing was not the same
* Lin included a chart in his brief that he claims is a literal
translation of the letter and does not include a reference to
an arrest. That chart is not proper evidence, however. See
Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir. 2009) (“An
attorney’s unsworn statements in a brief are not evidence.”).
4
1 interpreter who appeared at Lin’s initial hearing before the
2 IJ when the letter was first introduced.
3 II. Adverse Credibility Determination
4 Given the inconsistencies between Lin’s testimony and his
5 aunt’s letter regarding one of two alleged incidents of
6 persecution and the inconsistencies regarding his baptism, we
7 conclude that the IJ’s adverse credibility determination was
8 supported by substantial evidence. See Xiu Xia Lin v. Mukasey,
9 534 F.3d 162, 165-66 (2d Cir. 2008). The agency may,
10 “[c]onsidering the totality of the circumstances,” base a
11 credibility finding on inconsistencies in an asylum applicant’s
12 oral and written statements as well as inconsistencies between
13 the applicant’s testimony and other record evidence. 8 U.S.C.
14 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-64.
15 “We defer . . . to an IJ’s credibility determination unless . . .
16 it is plain that no reasonable fact-finder could make such an
17 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
18 Substantial evidence supports the agency’s determination that
19 Lin was not credible.
20 The agency reasonably relied on the inconsistency between
21 Lin’s testimony that he was beaten but not arrested for
22 evangelizing in February 2011 and his aunt’s letter stating that
23 he was arrested during that incident. This is a significant
5
1 discrepancy relating to one of the two alleged incidents of
2 persecution, and the agency reasonably determined that it
3 undermined Lin’s credibility. See Xian Tuan Ye v. Dep’t of
4 Homeland Sec., 446 F.3d 289, 295-96 (2d Cir. 2006) (one material
5 inconsistency relating to central aspect of asylum claim may
6 adequately support an adverse credibility determination).
7 The agency also reasonably relied on inconsistencies among
8 Lin’s oral testimony, his written statement, and a letter from
9 his sister regarding his baptism. Lin testified that he was
10 baptized in 2010 in China and that Christians may only be
11 baptized once. His application omitted the 2010 baptism,
12 however, and reported that he was taking classes at his U.S.
13 church with the hope of being baptized. Additionally, a letter
14 from Lin’s sister stated that Lin intended to be baptized in
15 the United States and did not mention a 2010 baptism, even though
16 Lin testified that his sister knew that he was baptized in 2010.
17 Where a petitioner’s “claims of persecution are based on his
18 practice of religion, his inconsistent testimony regarding when
19 and how many times he ha[s] been baptized constitutes a
20 substantial discrepancy.” Biao Yang v. Gonzales, 496 F.3d 268,
21 273 (2d Cir. 2007). The agency was not compelled to credit Lin’s
22 explanations that he was only taking baptism classes in order
23 to acquaint himself with his new church and that both he and
6
1 his sister made inadvertent mistakes in stating that he planned
2 to be baptized. Those explanations did not address his clear
3 statement in his application that he intended to be baptized
4 in the United States or his sister’s omission of his earlier
5 baptism. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
6 Given these discrepancies, which call into question Lin’s
7 practice of Christianity and the allegations of past harm, the
8 record supports the agency’s adverse credibility
9 determination. Xiu Xia Lin, 534 F.3d at 167; Xian Tuan Ye, 446
10 F.3d at 295-96. Because Lin’s claims were all based on the same
11 factual predicate, the adverse credibility determination is
12 dispositive of asylum, withholding of removal, and CAT relief.
13 Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, the pending motion
16 for a stay of removal is DISMISSED as moot.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
7