11-3722 BIA
Lin v. Holder A098 718 206
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 27th day of August, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _____________________________________
12
13 ZHU LIN,
14 Petitioner,
15
16 v. 11-3722
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael Brown, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Douglas E.
27 Ginsburg, Assistant Director; Nicole
28 R. Prairie, Trial Attorney, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DENIED.
6 Petitioner Zhu Lin, a native and citizen of the
7 People’s Republic of China, seeks review of an August 22,
8 2011, decision of the BIA affirming the July 15, 2010,
9 decision of Immigration Judge (“IJ”) Helen Sichel, which
10 denied his application for asylum, withholding of removal,
11 and relief under the Convention Against Torture (“CAT”). In
12 re Zhu Lin, No. A098 718 206 (B.I.A. Aug. 22, 2011), aff’g
13 No. A098 718 206 (Immig. Ct. N.Y. City, July 15, 2010). We
14 assume the parties’ familiarity with the underlying facts
15 and procedural history in this case.
16 We have reviewed both the IJ’s and BIA’s decisions “for
17 the sake of completeness.” See Zaman v. Mukasey, 514 F.3d
18 233, 237 (2d Cir. 2008). The applicable standards of review
19 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see
20 also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.
21 2008).
22 For asylum applications, like Lin’s, governed by the
23 REAL ID Act, the agency may, “[c]onsidering the totality of
2
1 the circumstances, . . . base a credibility finding on the
2 demeanor, candor or responsiveness of the applicant, . . .
3 [and] the consistency between the applicant’s or witness’s
4 written or oral statements, . . . without regard to whether
5 an inconsistency . . . goes to the heart of the applicant’s
6 claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
7 F.3d at 167. We “defer to an IJ’s credibility determination
8 unless, from the totality of the circumstances, it is plain
9 that no reasonable fact-finder could make such an adverse
10 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
11 Substantial evidence supports the agency’s adverse
12 credibility determination.
13 The agency based its adverse credibility determination
14 on inconsistencies between Lin’s original asylum
15 application, which omits any mention of Lin’s May 1998
16 altercation with family planning officials, and his amended
17 application, in which he states that family planning
18 officials showed up at his house following his wife’s
19 absence from her gynecological checkups, and dragged him to
20 the family planning office, where they detained and beat
21 him. Lin argues that because the inconsistency is between
22 his original and amended asylum applications, and because
3
1 the IJ accepted the amended application with knowledge of
2 the addition of the May 1998 incident, this inconsistency
3 should not reflect negatively on his credibility. This
4 argument is without merit as the “IJ may rely on any
5 inconsistency” in finding an applicant for asylum not
6 credible. See Xiu Xia Lin, 534 F.3d at 167 (emphasis in
7 original). Furthermore, because Lin’s explanation for the
8 absence of the May 1998 event was itself inconsistent, in
9 that he asserted both that the omission was due to a
10 translation error and alternately that he forgot to include
11 this event in his original application, the IJ was not
12 required to credit it. See Majidi v. Gonzales, 430 F.3d 77,
13 80-81 (2d Cir. 2005) (the agency need not credit an
14 applicant’s explanations for inconsistent testimony unless
15 those explanations would compel a reasonable fact-finder to
16 do so). Because the inconsistency relates to the incident
17 that formed the basis of the claim of past persecution, the
18 totality of the circumstances supports the adverse
19 credibility determination. See 8 U.S.C.
20 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because
21 the adverse credibility determination is supported by
22 substantial evidence, the agency did not err in denying
4
1 asylum, withholding of removal, and CAT relief, as all of
2 the claims relied on the same factual predicate. See Paul
3 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang
4 v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
5