Lin v. Garland

20-370
Lin v. Garland
BIA
Loprest, IJ
A206 260 502
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 18th day of May, two thousand twenty-two.
5
6 PRESENT:
7 MICHAEL H. PARK,
8 BETH ROBINSON,
9 MYRNA PÉREZ,
10 Circuit Judges.
11 _____________________________________
12
13 BING QING LIN,
14 Petitioner,
15
16 v. 20-370
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Zhou Wang, New York, NY.
24
25 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
26 Assistant Attorney General; Holly
27 M. Smith, Senior Litigation
28 Counsel; Jesse D. Lorenz, Trial
1 Attorney, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 DC.

5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DENIED.

9 Petitioner Bing Qing Lin, a native and citizen of the

10 People’s Republic of China, seeks review of a January 16,

11 2020, decision of the BIA affirming an April 2, 2018, decision

12 of an Immigration Judge (“IJ”) denying her application for

13 asylum, withholding of removal, and relief under the

14 Convention Against Torture (“CAT”). In re Bing Qing Lin, No.

15 A 206 260 502 (B.I.A. Jan. 16, 2020), aff’g No. A 206 260 502

16 (Immig. Ct. N.Y.C. Apr. 2, 2018). We assume the parties’

17 familiarity with the underlying facts and procedural history.

18 Under the circumstances of this case, we have considered

19 both the IJ’s and the BIA’s opinions “for the sake of

20 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

21 524, 528 (2d Cir. 2006). We review an adverse credibility

22 determination under a “substantial evidence standard,” Hong

23 Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018), and “the

2
 1 administrative findings of fact are conclusive unless any

2 reasonable adjudicator would be compelled to conclude to the

3 contrary,” 8 U.S.C. § 1252(b)(4)(B).

4 “Considering the totality of the circumstances, and all

5 relevant factors, a trier of fact may base a credibility

6 determination on the demeanor, candor, or responsiveness of

7 the applicant or witness,” inconsistencies within and between

8 an applicant’s statements and other evidence, “without regard

9 to whether an inconsistency, inaccuracy, or falsehood goes to

10 the heart of the applicant’s claim, or any other relevant

11 factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer therefore

12 to an IJ’s credibility determination unless, from the

13 totality of the circumstances, it is plain that no reasonable

14 fact-finder could make such an adverse credibility

15 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

16 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial

17 evidence supports the agency’s determination that Lin was not

18 credible as to her claim that she was detained and physically

19 abused for attending an unauthorized Christian church.

20 The agency reasonably relied on inconsistencies

21 among Lin’s statements and evidence regarding the conditions

3
1 of her confinement, her alleged mistreatment, her reason for

2 leaving China, and her residence in the United States. See

3 8 U.S.C. § 1158(b)(1)(B)(iii). Contrary to Lin’s position,

4 the agency was not required to credit her explanations because

5 they did not necessarily resolve the inconsistencies: “A

6 petitioner must do more than offer a plausible explanation

7 for h[er] inconsistent statements to secure relief; [s]he

8 must demonstrate that a reasonable fact-finder would be

9 compelled to credit h[er] testimony.” Majidi v. Gonzales,

10 430 F.3d 77, 80 (2d Cir. 2005) (internal quotation marks

11 omitted); see also Siewe v. Gonzales, 480 F.3d 160, 167 (2d

12 Cir. 2007) (“Where there are two permissible views of the

13 evidence . . . a reviewing court must defer to [the agency’s]

14 choice so long as the deductions are not illogical or

15 implausible.” (internal quotation marks and citation

16 omitted)). Moreover, contrary to her position that the

17 inconsistencies were not material, the inconsistencies

18 regarding her conditions of confinement and past visa

19 application call into question the basis of her asylum claim

20 and her reason for leaving China. Moreover, the agency is

21 permitted to rely on even non-material inconsistencies. See

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 1 Hong Fei Gao, 891 F.3d at 77 (“IJs may rely on non-material

2 omissions and inconsistencies,” so long as they have a

3 “tendency to suggest a petitioner fabricated his or her

4 claim”); Xiu Xia Lin, 534 F.3d at 167 (holding that “an IJ

5 may rely on any inconsistency or omission in making an adverse

6 credibility determinations as long as the ‘totality of the

7 circumstances’ establishes that an asylum applicant is not

8 credible” (quoting 8 U.S.C. § 1158(b)(1)(B)(iii))).

9 The adverse credibility determination is bolstered by

10 the IJ’s demeanor finding, to which we defer and which Lin

11 does not challenge. See Li Hua Lin v. U.S. Dep’t of Justice,

12 453 F.3d 99, 109 (2d Cir. 2006) (giving “particular

13 deference” to demeanor finding because “the IJ’s ability to

14 observe . . . demeanor places her in the best position to

15 evaluate whether apparent problems in the . . . testimony

16 suggest a lack of credibility or, rather, can be attributed

17 to an innocent cause such as difficulty understanding the

18 question”); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.

19 1998) (“Issues not sufficiently argued in the briefs are

20 considered waived and normally will not be addressed on

21 appeal.”). Regardless of waiver, the record supports the

5
1 demeanor finding given Lin’s struggle to consistently

2 describe her detention. See Li Hua Lin, 453 F.3d at 109 (“We

3 can be still more confident in our review of observations

4 about an applicant’s demeanor where, as here, they are

5 supported by specific examples of inconsistent testimony.”).

6 Finally, the agency reasonably concluded that Lin’s

7 corroborating evidence did not rehabilitate her testimony or

8 otherwise satisfy her burden of proof. See 8 U.S.C.

9 § 1158(b)(1)(B)(ii) (“The testimony . . . may be sufficient

10 to sustain the applicant’s burden without corroboration, but

11 only if the applicant satisfies the trier of fact that the

12 applicant’s testimony is credible . . . . In determining

13 whether the applicant has met the . . . burden, the trier of

14 fact may weigh the credible testimony along with other

15 evidence of record.”); Biao Yang v. Gonzales, 496 F.3d 268,

16 273 (2d Cir. 2007) (an asylum applicant’s failure to

17 corroborate testimony may bear on credibility “because the

18 absence of corroboration in general makes an applicant unable

19 to rehabilitate testimony that has already been called into

20 question”). Again, Lin has waived any challenge to the

21 corroboration finding. See Norton, 145 F.3d at 117. Even

6
1 if not waived, the agency reasonably afforded little weight

2 to Lin’s corroborating evidence because it either contained

3 misspellings on purportedly official documents, was authored

4 by interested witnesses not subject to cross examination, or

5 both. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d Cir.

6 2013) (“We generally defer to the agency’s evaluation of the

7 weight to be afforded an applicant’s documentary evidence.”);

8 Matter of H–L–H & Z–Y–Z–, 25 I. & N. Dec. 209, 215

9 (B.I.A. 2010) (giving diminished evidentiary weight to

10 letters from “relatives and friends,” because they were from

11 interested witnesses not subject to cross-examination), rev’d

12 on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d

13 Cir. 2012).

14 In sum, given the multiple inconsistencies, demeanor

15 finding, and lack of reliable corroboration, substantial

16 evidence supports the adverse credibility determination. See

17 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

18 The adverse credibility determination is dispositive of

19 asylum, withholding of removal, and CAT relief because all

20 three forms of relief were based on the same factual

21 predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d

7
1 Cir. 2006).

2 For the foregoing reasons, the petition for review is

3 DENIED. All pending motions and applications are DENIED and

4 stays VACATED.

5 FOR THE COURT:
6 Catherine O’Hagan Wolfe,
7 Clerk of Court
8

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