16-3216
Lin v. Sessions
BIA
Van Wyke, IJ
A089 475 185
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.
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
16th day of October , two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
JON O. NEWMAN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
YUAN LIN,
Petitioner,
v. 16-3216
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Stuart Altman, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Russell J. E.
Verby, Senior Litigation Counsel;
John D. Williams, Trial Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, DC.
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.
Petitioner Yuan Lin, a native and citizen of the People’s
Republic of China, seeks review of a September 8, 2016, decision
of the BIA affirming a July 31, 2015, decision of an Immigration
Judge (“IJ”) denying Lin’s application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Yuan Lin, No. A 089 475 185 (B.I.A. Sept. 8,
2016), aff’g No. A 089 475 185 (Immig. Ct. N.Y. City July 31,
2015). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
Under the circumstances of this case, we have reviewed both
the BIA’s and IJ’s decisions. See Yun-Zui Guan v. Gonzales,
432 F.3d 391, 394 (2d Cir. 2005). The standards of review are
well established. See 8 U.S.C. § 1252(b)(4); Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 165 (2d Cir. 2008).
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The agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his account, and inconsistencies in his
statements and other record evidence, “without regard to
whether an inconsistency, inaccuracy, or falsehood goes to the
heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “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.” Majidi v. Gonzales, 430 F.3d 77, 80
(2d Cir. 2005) (internal quotation marks omitted).
The agency reasonably relied on Lin’s lack of familiarity
with any details relating to Falun Gong to find that his claim
of practicing Falun Gong was not “plausible.” See 8 U.S.C. §
1158(b)(1)(b)(iii). Lin testified that he did not know the
contents of the flyers he distributed and that he had not known
if the friend who recruited him practiced Falun Gong, what Falun
Gong was, or that it was illegal. Since Lin handed out flyers
promoting Falun Gong for 10 days, it was reasonable to assume
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he would have read one of them. And his claimed ignorance of
the illegality of Falun Gong was in conflict with his testimony
that he knew he had to avoid being discovered by the police.
Lin’s explanation that he was simply following instructions did
not compel a different conclusion. See Majidi, 430 F.3d at
80-81. Relatedly, despite his detention in China for
distributing the Falun Gong flyers, Lin claimed to learn that
his friend practiced Falun Gong only after his mother obtained
a letter to support his asylum application.
The agency also reasonably concluded that Lin’s inability
to identify the person who bailed him out of jail diminished
the plausibility of his claim. Lin stated that his parents
found “someone who [wa]s well known” to bail him out of jail,
but could not expand on who that individual was. The IJ
reasonably found this implausible. Lin had time to document
his asylum application and, in fact, obtained a letter from his
mother to corroborate the claim. The IJ considered Lin’s
explanation—that he was “very young at the time” and did not
ask for many details—but was not compelled to accept it because
Lin also failed to obtain the information when preparing his
case for the hearing. See id.
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Finally, the agency’s demeanor finding adds further
support to the adverse credibility finding. See Li Hua Lin v.
U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (giving
“particular deference” to adverse credibility determinations
“that are based on the adjudicator’s observation of the
applicant’s demeanor”). Lin’s responses were sometimes
unclear. For example, when asked whether he was concerned
about the police and being arrested, his responses varied from
“I did not [worry]” to “Of course I did.” And when questioned
about whether he attended Falun Gong rallies in the United
States, Lin initially stated “sometimes” followed by “No.”
Given the implausibility in Lin’s claim and the agency’s
demeanor finding, substantial evidence supports the adverse
credibility determination. See Xiu Xia Lin, 534 F.3d at
165-66. The adverse credibility determination is dispositive
of asylum, withholding of removal, and CAT relief because all
three claims are based on the same factual predicate. See Paul
v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
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and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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