12-145 BIA
Lin v. Holder Chew, IJ
A089 203 779
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.
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 27th day of March, two thousand thirteen.
PRESENT: DENNIS JACOBS,
Chief Judge,
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
XING EN LIN,
Petitioner,
v. 12-145
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Michael Brown, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant Attorney General;
John S. Hogan, Senior Litigation Counsel; Michael C.
Heyse, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice,
Washington, D.C.
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.
Xing En Lin, a native and citizen of the People’s Republic of China, seeks review
of a December 30, 2011, decision of the BIA affirming a January 14, 2010, decision of
Immigration Judge (“IJ”) George T. Chew, which pretermitted his application for asylum
and denied his application for withholding of removal and relief under the Convention
Against Torture (“CAT”). In re Xing En Lin, No. A089 203 779 (B.I.A. Dec. 30, 2011),
aff’g, No. A089 203 779 (Immig. Ct. N.Y. City Jan. 14, 2010). We assume the parties’
familiarity with the underlying facts and procedural history in this case.
“When the BIA issues an opinion, the opinion becomes the basis for judicial
review of the decision of which the alien is complaining.” Yan Chen v. Gonzales, 417
F.3d 268, 271 (2d Cir. 2005) (citations omitted) (internal quotation marks omitted).
Where, as here, “the BIA adopts the decision of the IJ and merely supplements the IJ’s
decision . . . we review the decision of the IJ as supplemented by the BIA.” Id. “The
substantial evidence standard of review applies, and we uphold the IJ’s factual findings if
they are supported by reasonable, substantial and probative evidence in the record.”
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (citations omitted) (internal
quotation marks omitted).
The amendments made to the Immigration and Nationality Act by the REAL ID
Act of 2005, govern Lin’s application. 8 U.S.C. §§ 1158(b)(1)(B)(iii); 1231(b)(3)(C).
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Under these amendments, the fact-finder may consider the totality of the circumstances
and base a credibility finding on the applicant’s “demeanor, candor, or responsiveness,”
the plausibility of her account, and inconsistencies in her statements, without regard to
whether they go “to the heart of the applicant’s claim.” See id. § 1158(b)(1)(B)(iii); Xiu
Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). 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 [a] . . . ruling.” Xiu Xia Lin, 534 F.3d at 167.
The IJ’s adverse credibility determination is supported by substantial evidence.
The IJ reasonably based his credibility finding on: (1) Lin’s omission from his asylum
application of any mention of the bribes that he testified that his parents paid to Chinese
officials to secure his release following his two arrests; and (2) omissions in the letter
from Lin’s father of any mention of the bribes he allegedly paid or of the visit by Chinese
officials to his home that Lin testified occurred after he had fled to the United States. See
8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167 (noting that
where the totality of the circumstances establishes that an applicant is not credible, “an IJ
may rely on any inconsistency or omission or omission in making an adverse credibility
determination”) (emphasis retained). The IJ was not required to credit Lin’s explanations
for these omissions. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“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.”) (emphasis retained) (citations omitted) (internal quotation marks
omitted).
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Given the inconsistency between Lin’s testimony and the information contained in
his statement and in his father’s letter, the agency’s adverse credibility determination was
reasonable, based on the totality of the circumstances See 8 U.S.C. § 1158(b)(1)(B)(iii);
Xiu Xia Lin, 534 F.3d at 167. The adverse credibility determination, therefore, precludes
Lin’s success on the withholding of removal claim. See Paul v. Gonzales, 444 F.3d 148,
156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. The pending
motion for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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