Yinghua Jin v. Holder

11-263 Jin v. Holder BIA Hom, IJ A 098 466 505 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 Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 15th day of April, two thousand thirteen. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 DENNY CHIN, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 12 _____________________________________ 13 14 YINGHUA JIN, 15 Petitioner, 16 17 v. 11-263 18 NAC 19 ERIC H. HOLDER, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 ______________________________________ 23 24 FOR PETITIONER: Ronald D. Richey, Rockville, MD 25 26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 27 Attorney General; Thomas B. 28 Fatouros, Senior Litigation Counsel; 29 Karen Y. Stewart, Attorney, Office 30 of Immigration Litigation, U.S. 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 4 is DISMISSED in part and DENIED in part. 5 Yinghua Jin, a native and citizen of China, seeks 6 review of a December 22, 2010, order of the BIA affirming 7 the January 6, 2009, decision of Immigration Judge (“IJ”) 8 Sandy K. Hom, which denied her application for asylum, 9 withholding of removal, and relief under the Convention 10 Against Torture (“CAT”). In re Yinghua Jin, No. A098 466 11 505 (B.I.A. Dec. 22, 2010), aff’g No. A098 466 505 (Immig. 12 Ct. N.Y. City Jan. 6, 2009). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 in this case. 15 I. Asylum - Pretermission 16 Jin’s argument that the IJ ignored changed country 17 conditions based on her membership in the Chinese Democracy 18 and Justice Party (CDJP) as a basis for finding her asylum 19 application timely is misplaced as the IJ found her 20 application time-barred only as to past persecution and 21 denied asylum on the merits with respect to her fear of 22 future persecution based on her CDJP activities in the 2 1 United States. Further, the BIA, albeit in the context of 2 determining Jin’s withholding claim, considered whether Jin 3 was eligible for asylum and fully addressed the merits of 4 her future persecution claim before denying relief. Thus, 5 as Jin has not raised a colorable constitutional claim or 6 question of law as to the agency’s determination that her 7 asylum application was time-barred, we do not further 8 address the pretermission finding. See 8 U.S.C. 9 §§ 1158(a)(3) (providing that federal courts lack 10 jurisdiction to review agency’s pretermission of asylum as 11 untimely), 1252(a)(2)(D) (preserving review of 12 constitutional claims and questions of law). 13 II. Asylum, Withholding of Removal, and CAT - Merits 14 Under the circumstances of this case, we have 15 considered both the IJ’s and the BIA’s opinions “for the 16 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 17 (2d Cir. 2008). The applicable standards of review are 18 well-established. See 8 U.S.C. § 1252(b)(4)(B); see also 19 Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007). 20 For asylum applications, such as this one, governed by 21 the REAL ID Act, the agency may, considering the totality of 22 the circumstances, base a credibility finding on an asylum 3 1 applicant’s demeanor, the plausibility of his account, and 2 inconsistencies in his statements, without regard to whether 3 they go “to the heart of the applicant’s claim.” 8 U.S.C. 4 § 1158(b)(1)(B)(iii). Substantial evidence supports the 5 agency’s adverse credibility determination. 6 In finding Jin not credible, the agency reasonably 7 relied on Jin’s demeanor, as well as instances of 8 inconsistent and implausible testimony. Id. We give 9 particular deference to the demeanor finding as the record 10 shows multiple occasions on which Jin paused for a long time 11 prior to responding to questions. See Majidi v. Gonzales, 12 430 F.3d 77, 81 n.1 (2d Cir. 2005). The adverse credibility 13 determination is further supported by specific examples of 14 Jin’s inconsistent and implausible testimony. See Xiu Xia 15 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per 16 curiam). For example, as the agency found, Jin provided 17 inconsistent testimony with respect to whether her pro- 18 democracy activities on behalf of the CDJP would have 19 negative repercussions for her family in China. See Xiu Xia 20 Lin, 534 F.3d at 167. Furthermore, the agency reasonably 21 found implausible Jin’s assertion that she did not know the 22 contents of her applications for employment authorization 4 1 and for adjustment of status, given that Jin had included 2 with her applications the requisite identification materials 3 and had signed her adjustment of status application. 4 See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Wensheng Yan v. 5 Mukasey, 509 F.3d 63, 67 (2d Cir. 2007) (holding that where 6 the IJ’s findings are “tethered to record evidence, and 7 there is nothing else in the record from which a firm 8 conviction of error could properly be derived,” we will not 9 disturb the inherent implausibility finding). A reasonable 10 fact finder would not be compelled to credit Jin’s 11 explanations for her inconsistent and implausible testimony. 12 See Majidi, 430 F.3d at 80-81. 13 Ultimately, given the demeanor, inconsistency, and 14 implausibility findings, the agency’s adverse credibility 15 determination is supported by substantial evidence. See Xiu 16 Xia Lin, 534 F.3d at 165-66. Accordingly, the agency’s 17 denial of relief was not in error as all of the claims 18 shared the same factual predicate. See Paul v. Gonzales, 19 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. Dep’t of 20 Justice, 426 F.3d 520, 523 (2d Cir. 2005). Because the 21 adverse credibility determination is dispositive, we do not 22 5 1 reach the agency’s alternative finding that, even if 2 credible, Jin failed to meet her burden of proof. 3 For the foregoing reasons, the petition for review is 4 DISMISSED in part and DENIED in part. As we have completed 5 our review, any stay of removal that the Court previously 6 granted in this petition is VACATED, and any pending motion 7 for a stay of removal in this petition is DISMISSED as moot. 8 Any pending request for oral argument in this petition is 9 DENIED in accordance with Federal Rule of Appellate 10 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk 13 14 6