15-2655
Lin v. Sessions
BIA
Zagzoug, IJ
A087 798 612
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
2nd day of January, two thousand eighteen.
PRESENT:
JON O. NEWMAN,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_____________________________________
SUHANG LIN,
Petitioner,
v. 15-2655
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Anthony
C. Payne, Assistant Director;
Kathleen Kelly Volkert, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Suhang Lin, a native and citizen of the People’s
Republic of China, seeks review of a July 27, 2015 decision of
the BIA affirming a July 15, 2014 decision of an Immigration
Judge (“IJ”) denying Lin’s application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Suhang Lin, No. A087 798 612 (B.I.A. July 27,
2015), aff’g No. A087 798 612 (Immig. Ct. N.Y.C. July 15, 2014).
Under the circumstances of this case, we review the IJ’s
decision as modified by the BIA, see Xue Hong Yang v. U.S. Dep’t
of Justice, 426 F.3d 520, 522 (2d Cir. 2005), and address only
the adverse credibility determination, applying well
established standards of review, see 8 U.S.C. § 1252(b)(4)(B);
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165–66 (2d Cir. 2008)
(reviewing adverse credibility determination for substantial
evidence). In doing so, we assume the parties’ familiarity
with the underlying facts and procedural history of the case.
For applications such as Li’s, governed by the REAL ID Act
of 2005, the agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on an asylum
2
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his account, and inconsistencies in his
statements and other record evidence “without regard to
whether” the inconsistencies go “to the heart of the applicant’s
claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v.
Mukasey, 534 F.3d at 163–64. “We defer . . . to an IJ’s
credibility determination unless, from the totality of the
circumstances, it is plain that no reasonable fact-finder could
make such an adverse credibility ruling.” Xiu Xia Lin v.
Mukasey, 534 F.3d at 167. Further, “[a] petitioner must do more
than offer a plausible explanation for his inconsistent
statements to secure relief; he must demonstrate that a
reasonable fact-finder would be compelled to credit his
testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)
(internal quotation marks and emphasis omitted). By these
standards, the agency’s adverse credibility determination is
supported by substantial evidence.
First, the IJ concluded that Lin’s testimony was
inconsistent with respect to his contacts with his father. Lin
testified that he saw his father once when he first arrived in
the United States in 2010, and had not seen him again thereafter.
At his 2011 asylum interview, however, Lin indicated that he
was at that time living with his father and aunt in Brooklyn;
3
when confronted at his hearing with notes of that interview,
Lin admitted that he had made this statement under oath, but
continued to assert that he had not seen his father since 2010.1
The inconsistency was reinforced by the testimony of Lin’s aunt,
who stated that when Lin’s father was in the New York area, he
would visit and stay at their home. She further testified that
she had seen Lin and his father attend church together, although
Lin had testified they had never done so.
The IJ was entitled to discredit Lin’s testimony based on
his contradictory descriptions of his interactions with his
father and the contrary testimony of his aunt. See Siewe v.
Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Drawing inferences
from direct and circumstantial evidence is a routine and
necessary task of any factfinder.”). Although this
inconsistency did not go to the core of Lin’s claim, it was not
“minor and isolated,” Xian Tuan Ye v. Dep’t of Homeland Sec.,
446 F.3d 289, 294 (2d Cir. 2006), but rather a major circumstance
of his life and religious observance in the United States, see
Xiu Xia Lin v. Mukasey, 534 F.3d at 167 (“[A]n IJ may rely on
1 Lin argues that the BIA wrongly determined that the IJ relied
upon the notes of the interview, which were not part of the
record. The IJ’s decision, however, makes clear that the
credibility judgment in this regard was made “based on the
respondent’s own admissions” that he “testified previously,
under oath, inconsistent” with his hearing testimony, as well
as his inability to explain that inconsistency. A.R. 66.
4
any inconsistency or omission in making an adverse credibility
determination as long as the ‘totality of the circumstances’
establishes that an asylum applicant is not credible.”
(emphasis in original)).
Second, the IJ’s general doubts about Lin’s demeanor
provide further support for the adverse credibility ruling.
“[T]he IJ has the unique advantage among all officials involved
in the process of having heard directly from the applicant,”
and so that finding deserves deference. Zhou Yun Zhang v. U.S.
INS, 386 F.3d 66, 73-74 (2d Cir. 2004), overruled on other
grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296
(2d Cir. 2007). The IJ found that Lin’s testimony was generally
“disingenuous” and that his halting responses were frequently
a means of “buying time to formulate an answer.” A.R. 64. The
IJ specifically identified Lin’s testimony about his past
persecution as “vague and incredible,” id. at 65; his testimony
about his religious observance not “genuine,” id.; and his
testimony about his proselytizing activities and baptism
neither “genuine” nor “convincing,” id. at 67–68. The IJ also
noted that Lin’s testimony about whether he lived with his
father was “confusing[],” id. at 56, and “inconsisten[t],” id.
at 66. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99,
109 (2d Cir. 2006) (“We can be still more confident in our review
5
of observations about an applicant’s demeanor where, as here,
they are supported by specific examples of inconsistent
testimony.”).
Finally, the IJ found that Lin’s failure to supply
corroborating evidence—such as a letter from the aunt who
introduced him to the church in the United States—failed to
rehabilitate his discredited religious observance testimony.
See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
(explaining that “absence of corroboration” may make applicant
“unable to rehabilitate testimony that [had] already been
called into question”). We identify no error in that finding.
Given the IJ’s demeanor finding, the noted testimonial
inconsistencies, and the lack of corroboration of his alleged
continuing religious practice, the totality of the
circumstances supports the IJ’s adverse credibility
determination such that no reasonable factfinder would be
“compelled to conclude to the contrary.” Majidi v. Gonzales,
430 F.3d at 79 (internal quotation marks omitted).2 Because
2 Insofar as Lin alleges error in other IJ and BIA adverse
credibility findings, we conclude that, even assuming error,
remand would be futile given the findings affirmed here. See
Lianping Li v. Lynch, 839 F.3d 144, 149 (2d Cir. 2016) (stating
remand futile if (1) substantial record evidence relied on by
IJ, considered in aggregate, supports finding that petitioner
lacked credibility, and (2) disregarding aspects of IJ’s
reasoning that are tainted by error, “we can state with
6
Lin’s asylum, withholding of removal, and CAT claims were based
on the same factual predicate, and the credibility
determination was dispositive as to all three, see Paul v.
Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006), and we need not
review the agency’s time-bar denial of asylum, see INS v.
Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts
and agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach.”).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
confidence that the IJ would adhere to his decision were the
petition remanded” (internal quotation marks omitted)).
7