Yongcai Lin v. Sessions

15-3693 Lin v. Sessions BIA Hom, IJ A205 050 586 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 TO 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 for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 3rd day of April, two thousand seventeen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 REENA RAGGI, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 YONGCAI LIN, 14 Petitioner, 15 16 v. 15-3693 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Zhen Liang Li, New York, NY. 24 25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; Patrick 27 J. Glen, Senior Litigation Counsel; 28 Robert N. Markle, Senior Litigation 29 Counsel; Alanna R. Kennedy, Law 30 Clerk, Office of Immigration 31 Litigation, United States 32 Department of Justice, Washington, 33 DC. 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 is 4 DENIED. 5 Petitioner Yongcai Lin, a native and citizen of the 6 People’s Republic of China, seeks review of an October 19, 2015, 7 decision of the BIA affirming an April 1, 2014, decision of an 8 Immigration Judge (“IJ”) denying Lin’s application for asylum, 9 withholding of removal, and relief under the Convention Against 10 Torture (“CAT”). In re Yongcai Lin, No. A205 050 586 (B.I.A. 11 Oct. 19, 2015), aff’g No. A205 050 586 (Immig. Ct. N.Y. City 12 Apr. 1, 2014). We assume the parties’ familiarity with the 13 underlying facts and procedural history in this case. 14 Under the circumstances of this case, we have reviewed the 15 IJ’s decision as modified by the BIA. Xue Hong Yang v. U.S. 16 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Lin has 17 waived any challenge to the agency’s denial of asylum as time 18 barred. Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d 19 Cir. 2005). Thus, the only issue before us is the agency’s 20 adverse credibility ruling. 21 We review the agency’s adverse credibility ruling for 22 substantial evidence. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin 23 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The agency 2 1 may, “[c]onsidering the totality of the circumstances,” base 2 an adverse credibility determination on the applicant’s 3 “candor, or responsiveness,” and on discrepancies in the 4 applicant’s statements, and on discrepancies between an 5 applicant’s statements and other record evidence. 8 U.S.C. 6 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We 7 defer . . . to an IJ’s credibility determination unless . . . 8 it is plain that no reasonable fact-finder could make such an 9 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. 10 Substantial evidence supports the determination that Lin was 11 not credible. 12 First, the agency reasonably relied on a discrepancy 13 between Lin’s testimony and his asylum interview regarding 14 whether he attended a government-sponsored church in China. In 15 his asylum interview, Lin stated that he attended a 16 government-sponsored church from the age of seven or eight 17 (around 1997) until 2007, when he switched to a family church. 18 But at his merits hearing, Lin testified that he had never been 19 to a government-sponsored church. Lin does not dispute that 20 this inconsistency exists. And his explanation—that his 21 parents took him to the government-sponsored church only to 22 “take a look”—is not compelling, particularly since it is 23 inconsistent with Lin’s statement that he attended the 3 1 government-sponsored church for 10 years. See Majidi v. 2 Gonzales, 430 F.3d 77, 81 (2d Cir. 2005) (“A petitioner ‘must 3 do more than offer a plausible explanation for his inconsistent 4 statements to secure relief; ‘he must demonstrate that a 5 reasonable fact-finder would be compelled to credit his 6 testimony.’” (quoting Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 7 76 (2d Cir. 2004))). 8 The IJ also reasonably relied on a four-year discrepancy 9 regarding his attendance at the underground family church: Lin 10 told the asylum officer that he attended a family church 11 beginning in 2007, but testified at the hearing that he started 12 attending that church around 2003. Confronted with this 13 discrepancy, Lin did not dispute it, but stated that he attended 14 the government-sponsored church just to observe and went to the 15 family church afterward. This explanation does not resolve the 16 inconsistency regarding when he started attending the family 17 church. Majidi, 430 F.3d at 81. 18 Third, the agency reasonably relied on Lin’s inconsistent 19 descriptions of the beating he received while in detention. 20 See Lianping Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016). 21 Lin’s asylum application detailed his mistreatment as involving 22 beating with fists, as well as slapping and kicking. At the 23 hearing, Lin initially testified that the police used their 4 1 fists to beat him, responded “no” when asked if the police used 2 anything else to beat him, and only agreed that he was kicked 3 and slapped when confronted with the statement from his 4 application. See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing 5 that IJ may rely on lack of responsiveness and inconsistencies); 6 Lianping Li, 839 F.3d at 150 (upholding adverse credibility 7 ruling where applicant “described the same incidents of 8 persecution differently” in asylum application and testimony). 9 The agency also reasonably concluded that Lin’s 10 corroborating evidence was insufficient to rehabilitate his 11 credibility or independently meet his burden of proof. See 12 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) 13 (recognizing that “[a]n applicant’s failure to corroborate his 14 . . . testimony may bear on credibility, because the absence 15 of corroboration in general makes an applicant unable to 16 rehabilitate testimony that has already been called into 17 question”); Chuilu Liu v. Holder, 575 F.3d 193, 198 n. 5 (2d 18 Cir. 2009) (“[A] failure to corroborate can suffice, without 19 more, to support a finding that an alien has not met his burden 20 of proof.”); see also 8 U.S.C. § 1158(b)(1)(B)(ii). In 21 particular, Lin did not explain the absence of a letter from 22 his parents describing their efforts to obtain evidence of his 23 detention or release. Such a letter was reasonably available 5 1 given that Lin received other documents from his father and 2 testified that he had asked his father to obtain a bond receipt 3 from the authorities. Chuilu Liu, 575 F.3d at 199. 4 Given the foregoing inconsistencies and lack of 5 corroborating evidence, the totality of the circumstances 6 supports the agency’s adverse credibility ruling. Xiu Xia Lin, 7 534 F.3d at 167; Biao Yang, 496 F.3d at 273. Because Lin’s 8 claims for relief were all based on the same factual predicate, 9 the adverse credibility determination is dispositive of asylum, 10 withholding of removal, and CAT relief. Paul v. Gonzales, 444 11 F.3d 148, 156-57 (2d Cir. 2006). 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of removal 14 that the Court previously granted in this petition is VACATED, 15 and any pending motion for a stay of removal in this petition 16 is DISMISSED as moot. Any pending request for oral argument 17 in this petition is DENIED in accordance with Federal Rule of 18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 19 34.1(b). 20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 6