Hua Jin v. Holder

11-5132
Jin v. Holder
BIA
Bain, IJ
A089 266 763

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

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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 1st day of May, two thousand thirteen.

PRESENT:
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_______________________________________

HUA JIN,
Petitioner,

v. 11-5132
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________

FOR PETITIONER: Gary J. Yerman, New York, N.Y.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Holly M. Smith,
Senior Litigation Counsel; Rachel
Browning, 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.

Hua Jin, a native and citizen of the People’s Republic

of China, seeks review of a November 16, 2011, decision of

the BIA affirming the June 1, 2010, decision of Immigration

Judge (“IJ”) Quynh Bain, which denied her application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Hua Jin, No. A089

266 763 (B.I.A. Nov. 16, 2011), aff’g No. A089 266 763

(Immig. Ct. N.Y. City June 1, 2010). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

Under the circumstances of this case, we have

considered both the IJ’s and the BIA’s opinions “for the

sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237

(2d Cir. 2008) (per curiam)(internal quotation marks

omitted). The applicable standards of review are well

established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

For asylum applications such as Jin’s, governed by the

amendments made to the Immigration and Nationality Act by

2
the REAL ID Act of 2005, “[i]t is well settled that, in

assessing the credibility of an asylum applicant’s

testimony, an IJ is entitled to consider whether the

applicant’s story is inherently plausible.” Wensheng Yan v.

Mukasey, 509 F.3d 63, 66 (2d Cir. 2007) (per curiam); accord

8 U.S.C. § 1158(b)(1)(B)(iii). This Court defers to an IJ’s

credibility determination unless “it is plain that no

reasonable fact-finder could make such an adverse

credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162,

167 (2d Cir. 2008) (per curiam).

The agency found several aspects of Jin’s testimony to

be implausible, including her testimony that she decided to

have a second child because her financial situation had

improved, despite other testimony that her husband had lost

his job the previous year and that his new business started

slowly. Jin argues that the agency improperly speculated

about her financial situation, given her testimony that she

had been saving money and had received financial assistance

from her family. Initially, while petitioners must raise to

the BIA the specific issues they later raise in this Court,

Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004) (per curiam),

the government’s contention that Jin failed to exhaust this

3
argument fails because it is subsidiary to the general

argument she raised in her BIA brief, Gill v. INS, 420 F.3d

82, 86 (2d Cir. 2005). Nevertheless, in consideration of

the totality of the circumstances, a “definite and firm

conviction” cannot be formed that the implausibility

findings were erroneous, given Jin’s failure to compellingly

explain her motivation for wanting more children. See Ming

Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir. 2006) (internal

quotation marks and citation omitted) (applying “definite

and firm conviction” standard).

Jin also contends that despite her failure to provide

her passport and the receipt for the fine imposed for

avoiding her required gynecological exams, she sufficiently

corroborated her claim with her household registration and

employment termination notice. However, the agency

reasonably determined that her failure to provide the fee

receipt undermined her claim because it could have

corroborated testimony that was called into question. See

Liu v. Holder, 575 F.3d 193, 197 (2d Cir. 2009) (“[A]n IJ,

weighing the evidence to determine if the alien has met his

burden, may rely on the absence of corroborating evidence

adduced by an otherwise credible applicant unless such

evidence cannot be reasonably obtained.”).

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Finally, Jin argues that the agency erred by failing to

consider evidence favorable to her claim, such as her

evidence of her alleged forced abortion. However, where, as

here, the agency has given “reasoned consideration to the

petition,” it need not “expressly parse or refute on the

record each individual argument or piece of evidence offered

by the petitioner.” Wei Guang Wang v. Bd. of Immigration

Appeals, 437 F.3d 270, 275 (2d Cir. 2006) (internal

quotation marks omitted).

As the only evidence of a threat to Jin’s life or

freedom depended upon her credibility, the adverse

credibility determination in this case is dispositive of her

claims for asylum, withholding of removal, and CAT relief.

See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the pending motion

for a stay of removal in this petition is DENIED as moot.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk