Jingzhi Jin v. Holder

11-3082-ag Jin v. Holder BIA Chew, IJ A088 775 911 A088 775 912 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 29th day of May, two thousand twelve. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 REENA RAGGI, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _______________________________________ 12 13 JINGZHI JIN, 14 YULAN LI, AKA YUILAN LI, 15 Petitioners, 16 17 v. 11-3082-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 ______________________________________ 23 24 FOR PETITIONERS: Stephen Shaiken, San Francisco, CA. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Linda S. Wernery, Assistant 28 Director; Susan Bennett Green, Trial 1 Attorney, Office of Immigration 2 Litigation, Civil Division, United 3 States Department of Justice, 4 Washington, D.C. 5 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 10 Petitioners Jingzhi Jin and Yulan Li, natives and 11 citizens of the People’s Republic of China, seek review of a 12 June 30, 2011, order of the BIA affirming the June 24, 2009, 13 decision of Immigration Judge (“IJ”) George T. Chew denying 14 their applications for asylum, withholding of removal, and 15 relief under the Convention Against Torture (“CAT”). In re 16 Jingzhi Jin, No. A088 775 911/912 (B.I.A. June 30, 2011), 17 aff’g No. A088 775 911/912 (Immig. Ct. N.Y. City June 24, 18 2009). We assume the parties’ familiarity with the 19 underlying facts and procedural history in this case. 20 Under the circumstances of this case, we have reviewed 21 the IJ’s decision as supplemented by the BIA. See Yan Chen 22 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 23 applicable standards of review are well-established. 24 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 25 F.3d 510, 513 (2d Cir. 2009). For asylum applications, such 2 1 as the petitioners’, governed by the REAL ID Act, the agency 2 may, considering the totality of the circumstances, base a 3 credibility finding on an applicant’s demeanor, the 4 plausibility of his account, or inconsistencies in his 5 statements, without regard to whether they go “to the heart 6 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). 7 The petitioners argue that the IJ’s credibility 8 determination was not supported by the record because it was 9 based on Jin’s failure to provide adequate corroboration of 10 his claim. However, the IJ reasonably based his credibility 11 findings on inconsistencies, omissions, and a lack of 12 corroboration. Specifically, the IJ concluded that Jin’s 13 testimony was undermined by inconsistencies between his 14 asylum application, which stated that the police visited 15 Jin’s family in China and threatened him because he had 16 joined an organization that they compared to the Dalai 17 Lama’s organization without mentioning that the police asked 18 for his address in the United States, and Jin’s 19 testimony–which stated that the police asked for his address 20 but did not mention their comparison to the Dalai Lama’s 21 organization. 22 3 1 The petitioners concede that there were inconsistencies 2 in Jin’s testimony, but suggest that they were too minor to 3 support the credibility determination. However, under the 4 REAL ID Act, “an IJ may rely on any inconsistency or 5 omission in making an adverse credibility determination . . 6 .” See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 7 2008). The petitioners also argue that the IJ failed to 8 address Jin’s explanation that he forgot to mention that the 9 police asked for his address in his asylum application and 10 forgot to testify about the police’s comments on the Dalai 11 Lama’s organization. This argument is unavailing because 12 the record shows that the agency considered and rejected 13 these explanations. See Majidi v. Gonzales, 430 F.3d 77, 80 14 (2d Cir. 2005); see also Xiao Ji Chen v. U.S. Dep’t of 15 Justice, 471 F.3d 315, 338 n.17 (2d Cir. 2006). 16 Having found that Jin’s credibility was undermined by 17 inconsistencies in his statements, the IJ reasonably 18 expected him to provide corroboration to rehabilitate his 19 testimony. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d 20 Cir. 2007). Contrary to the petitioners’ argument, the IJ 21 was not required to give Jin notice of what evidence was 22 expected and an opportunity to collect it because the 4 1 corroboration finding was part of a credibility finding. 2 See Xiao Ji Chen, 471 F.3d at 341. The IJ reasonably 3 faulted Jin for failing to produce reasonably available 4 corroborating evidence in the form of: (1) a letter from his 5 family; (2) a copy of the third article he purportedly wrote 6 for the China Democracy and Justice Party (“CDJP”); and (3) 7 a witness from the CDJP. While Jin argued that he did not 8 collect a letter from his family because he was afraid that 9 the Chinese authorities would harm them, the BIA reasonably 10 rejected this explanation, noting that Jin had stated that 11 the authorities had requested that his family communicated 12 with him. See 8 U.S.C. § 1252(b)(4). 13 Together, the inconsistencies and omissions and Jin’s 14 failure to provide reasonably available corroborating 15 evidence provide substantial evidence in support of the 16 agency’s credibility determination. See Xiu Xia Lin, 534 17 F.3d at 167. Accordingly, the agency did not err in 18 concluding that the petitioners did not establish their 19 eligibility for asylum, withholding of removal, or CAT 20 relief. See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir. 21 2006). 22 5 1 For the foregoing reasons, the petition for review is 2 DENIED. As we have completed our review, any stay of 3 removal that the Court previously granted in this petition 4 is VACATED, and any pending motion for a stay of removal in 5 this petition is DISMISSED as moot. Any pending request for 6 oral argument in this petition is DENIED in accordance with 7 Federal Rule of Appellate Procedure 34(a)(2), and Second 8 Circuit Local Rule 34.1(b). 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 12 6