Jing Yong Lin v. Sessions , 693 F. App'x 53 ( 2017 )

16-926
Lin v. Sessions
BIA
Cheng, IJ
A201 129 127
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 13th day of July, two thousand seventeen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _____________________________________
12
13 JING YONG LIN,
14 Petitioner,
15
16 v. 16-926
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Meer M. M. Rahman, New York, N.Y.
24
25 FOR RESPONDENT: Joyce R. Branda, Deputy Assistant
26 Attorney General; Derek C. Julius,
27 Assistant Director; Christina J.
28 Martin, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
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 Jing Yong Lin, a native and citizen of China,
6 seeks review of a February 29, 2016, decision of the BIA
7 affirming an October 2, 2014, decision of an Immigration Judge
8 (“IJ”) denying Lin’s application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Jing Yong Lin, No. A201 129 127 (B.I.A. Feb.
11 29, 2016), aff’g No. A201 129 127 (Immig. Ct. N.Y. City Oct.
12 2, 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 (i.e., excluding the IJ’s
16 credibility determination as to Lin’s one-year witness on which
17 the BIA declined to rely). Xue Hong Yang v. U.S. Dep’t of
18 Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
19 standards of review are well established. See 8 U.S.C.
20 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162,
21 165-66 (2d Cir. 2008).
2
1 The governing REAL ID Act credibility standard provides
2 that the agency must “[c]onsider[] the totality of the
3 circumstances,” and may base a credibility finding on an
4 applicant’s “demeanor, candor, or responsiveness,” the
5 plausibility of his account, and inconsistencies in his or his
6 witness’s statements, “without regard to whether” they go “to
7 the heart of the applicant’s claim.” 8 U.S.C.
8 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
9 defer . . . to an IJ’s credibility determination unless . . . it
10 is plain that no reasonable fact-finder could make such an
11 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
12 Further, “[a] petitioner must do more than offer a plausible
13 explanation for his inconsistent statements to secure relief;
14 he must demonstrate that a reasonable fact-finder would be
15 compelled to credit his testimony.” Majidi v. Gonzales, 430
16 F.3d 77, 80 (2d Cir. 2005) (internal quotation marks omitted).
17 For the reasons that follow, we conclude that substantial
18 evidence supports the agency’s determination that Lin was not
19 credible.
20 First, the agency reasonably relied on the omission
21 concerning Lin’s detention-related injuries. See Xiu Xia Lin,
22 534 F.3d at 166-67 & n.3 (“An inconsistency and an omission
3
1 are . . . functionally equivalent” for credibility purposes).
2 Lin testified that he suffered bruising on his arm and back from
3 his beating in detention and that his father had observed these
4 injuries. However, neither Lin’s application nor his father’s
5 letter mentions any detention-related injuries. Although Lin
6 explained that he had not thought in great detail when he filled
7 out his application and that his father had probably forgotten
8 about his injuries, the agency was not compelled to accept these
9 explanations because it was reasonable to expect both Lin and
10 his father to describe Lin’s detention-related injuries.
11 Majidi, 430 F.3d at 80. As the IJ correctly observed, Lin’s
12 detention-related injuries implicate the degree of alleged harm
13 that he suffered, which is an essential element of his claim.
14 See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
15 Cir. 2006) (observing that the difference between harassment
16 and persecution is “necessarily one of degree that must be
17 decided on a case-by-case basis”).
18 Second, the agency reasonably relied on the omission of
19 Lin’s arrest from his underground church’s letter. See Xiu Xia
20 Lin, 534 F.3d at 166-67 & n.3. Lin provided in his testimony
21 and application that he and other church members were arrested
22 at an underground church gathering in August 2009; he also
4
1 testified that his underground church knew of his arrest.
2 However, Lin’s underground church’s letter makes no mention of
3 his arrest. When confronted with this omission, Lin explained
4 that he did not know why his arrest was omitted from the letter;
5 however, the IJ was not compelled to accept this explanation
6 because it did not explain the omission. Majidi, 430 F.3d at
7 80. Lin does not challenge this omission in his brief, and it
8 therefore stands as an appropriate basis for the credibility
9 determination. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d
10 Cir. 1998) (“Issues not sufficiently argued in the briefs are
11 considered waived and normally will not be addressed on
12 appeal.”).
13 Third, the IJ reasonably relied on the implausibility of
14 Lin’s account of the police’s efforts to locate him after he
15 escaped the raid on his underground church in November 2009.
16 See Xiu Xia Lin, 534 F.3d at 163-64. Lin testified that the
17 police raided his home and dorm two days after he escaped from
18 the November 2009 raid on his underground church, which the IJ
19 found implausible in light of Lin’s testimony that he escaped
20 before police arrived and that there was no official record of
21 his previous arrest. Although an implausibility finding
22 cannot be based on “bald speculation or caprice,” Zhou Yun Zhang
5
1 v. INS, 386 F.3d 66, 74 (2d Cir. 2004), overruled on other
2 grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 2963 (2d Cir. 2007), the IJ’s finding is tethered to the evidentiary
4 record, and it was “entirely reasonable for the IJ to have
5 considered [Lin’s] claims [concerning the police’s efforts to
6 locate him] implausible without further explanation and to have
7 relied on them, along with . . . [the] inconsistencies in [his]
8 testimony, in making the ultimate finding that [he] was not a
9 credible witness.” Ming Xia Chen v. Bd. of Immigration
10 Appeals, 435 F.3d 141, 146 (2d Cir. 2006). Lin does not
11 challenge the implausibility finding in his brief, and it
12 therefore stands as an appropriate basis for the credibility
13 determination. See Norton, 145 F.3d at 117.
14 Given the foregoing omission and implausibility findings,
15 the adverse credibility determination is supported by the
16 “totality of the circumstances.” Xiu Xia Lin, 534 F.3d at 167.
17 A reasonable adjudicator would not be compelled to conclude
18 otherwise. Id. The credibility determination is therefore
19 dispositive of Lin’s claims for asylum, withholding of removal,
20 and CAT relief because all three claims are based on the same
21 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57
22 (2d Cir. 2006). Accordingly, we decline to consider the
6
1 agency’s alternative determination that Lin’s asylum
2 application was untimely. See INS v. Bagamasbad, 429 U.S. 24,
3 25 (1976) (“As a general rule courts and agencies are not
4 required to make findings on issues the decision of which is
5 unnecessary to the results they reach.”).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of removal
8 that the Court previously granted in this petition is VACATED,
9 and any pending motion for a stay of removal in this petition
10 is DISMISSED as moot. Any pending request for oral argument
11 in this petition is DENIED in accordance with Federal Rule of
12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
13 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
7