Lin v. Garland ( 2021 )

19-140
Lin v. Garland
BIA
Nelson, IJ
A206 899 515
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 18th day of May, two thousand twenty-one.
PRESENT:
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
WENHUI LIN,
Petitioner,
v. 19-140
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Zhen Liang Li, Law Office of Zhen
Liang Li, New York, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Paul Fiorino, Senior
Litigation Counsel; Sherry D.
Soanes, 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 Wenhui Lin, a native and citizen of the
People’s Republic of China, seeks review of a December 20,
2018, decision of the BIA affirming a November 1, 2017,
decision of an Immigration Judge (“IJ”) denying asylum,
withholding of removal, and protection under the Convention
Against Torture (“CAT”). See In re Wenhui Lin, No. A 206 899
515 (B.I.A. Dec. 20, 2018), aff’g No. A 206 899 515 (Immig.
Ct. N.Y. City Nov. 1, 2017). We assume the parties’
familiarity with the underlying facts and procedural history.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA, i.e., minus the
inconsistency in the arrest warrant that the BIA declined to
rely on. See Xue Hong Yang v. U.S. Dep’t of Justice, 426
F.3d 520, 522 (2d Cir. 2005). We review adverse credibility
determinations for substantial evidence. See Hong Fei Gao v.
Sessions, 891 F.3d 67, 76 (2d Cir. 2018); see also 8 U.S.C.
2
§ 1252(b)(4)(B).
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on . . . the consistency between the applicant’s
or witness’s written and oral statements . . . , the internal
consistency of each such statement, [and] the consistency of
such statements with other evidence of record . . . 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); see also Xiu Xia Lin v. Mukasey, 534
F.3d 162, 163–64 (2d Cir. 2008). “We defer . . . to an IJ’s
credibility determination unless, from the totality of the
circumstances, it is plain that no reasonable fact-finder
could make such an adverse credibility ruling.” Xiu Xia Lin,
534 F.3d at 167; accord Hong Fei Gao, 891 F.3d at 76. The
agency’s determination that Lin was not credible as to his
claim that he was arrested, detained, and beaten in China on
account of his religious practice is supported by substantial
evidence.
The agency reasonably relied on Lin’s inconsistent
account of his past persecution as compared to the account in
3
his friend’s letter. See 8 U.S.C. § 1158(b)(1)(B)(iii); see
Xiu Xia Lin, 534 F.3d at 167 (upholding agency’s reliance on
discrepancies between the petitioner’s testimony and letters
from third parties). Lin testified that his friend, Guiluan
Lin was arrested with him, but his friend’s letter states
that “Lin, Wenhui was arrested with pastor and other members.
They were detained . . . , they were asked to report to local
police . . . , they lost their personal freedom.” Certified
Admin. Record 29. A plain reading of the letter suggests
that Lin and others were arrested, but not Guiluan Lin. See
Hong Fei Gao, 891 F.3d at 78, 81 (stating that direct
contradictions and inconsistencies are more probative of
credibility than omissions). The BIA was not required to
credit an updated letter that Lin presented on appeal--in
which Guiluan Lin stated that he had also been arrested and
had not expressed himself well in the prior letter because of
his limited education--as Lin did not allege any
mistranslation or explain why a lack of education would have
resulted in such a mistake. See Majidi v. Gonzales, 430 F.3d
77, 80-81 (2d Cir. 2005) (“A petitioner must do more than
offer a plausible explanation for his inconsistent statements
4
to secure relief; he must demonstrate that a reasonable fact-
finder would be compelled to credit his testimony.” (internal
quotation marks and citation omitted)).
The agency also properly relied on the inconsistency
between Lin’s testimony and his mother’s letter regarding
when he first told her about going to church, as well as Lin’s
shifting testimony as he attempted to explain the
discrepancy. See 8 U.S.C. § 1158(b)(1)(B)(iii). Lin’s
mother wrote that Lin called her the night he first went to
church to tell her that his friend was taking him to church;
but Lin testified that he did not tell his mother until after
he attended; and when confronted with the inconsistency, he
testified that he had told her before, then that he had told
her after, before finally stating he had called her twice.
Although the initial discrepancy was relatively trivial and
could be attributed to a poor memory, the IJ reasonably
concluded that Lin’s vacillating and contradictory responses
undermined his credibility. And given Lin’s ultimately
detailed testimony about two telephone calls, the IJ did not
err in rejecting his explanation of a poor memory. See
Majidi, 430 F.3d at 80-81.
5
Accordingly, we find that the adverse credibility
determination is supported by substantial evidence. See Hong
Fei Gao, 891 F.3d at 76; Xiu Xia Lin, 534 F.3d at 165–66. 1
That determination is dispositive of the claims for asylum,
withholding of removal, and CAT protection because the claims
were 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. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
1 We do not rely on the IJ’s finding that Lin failed to provide
details about his medical treatment, where he testified to the
treatment he received and that he was kept in the hospital for
observation after a CT scan. We decline to remand on this basis
because the findings discussed above constitute substantial
evidence for the agency’s decision. See Xiao Ji Chen v. U.S. Dep’t
of Justice, 471 F.3d 315, 338–39 (2d Cir. 2006).
6