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
4
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
8