Chaofei Lin v. Holder ( 2014 )

13-4419
Lin v. Holder
BIA
Cheng, IJ
A094 793 454
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of December, two thousand fourteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 JOSÉ A. CABRANES,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 CHAOFEI LIN,
14 Petitioner,
15
16 v. 13-4419
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gary J. Yerman, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Song Park, Senior
28 Litigation Counsel; Lindsay M.
29 Murphy, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington D.C; Julie Ahn, Law Clerk
4
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 Chaofei Lin, a native and citizen of the
10 People’s Republic of China, seeks review of a October 30,
11 2013, decision of the BIA, affirming the December 9, 2011,
12 decision of an Immigration Judge (“IJ”), denying his
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re Chaofei
15 Lin, No. A094 793 454 (B.I.A. Oct. 30, 2013), aff’g No. A094
16 793 454 (Immig. Ct. N.Y. City Dec. 9, 2011). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 both the BIA’s and IJ’s opinions. See Zaman v. Mukasey, 514
21 F.3d 233, 237 (2d Cir. 2008)(per curiam). The applicable
22 standards of review are well established. See 8 U.S.C.
23 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
24 (2d Cir. 2009). For asylum applications like Lin’s,
2
1 governed by the REAL ID Act, the agency may, “[c]onsidering
2 the totality of the circumstances,” base a credibility
3 finding on inconsistencies in an applicant’s statements and
4 other record evidence “without regard to whether” they go
5 “to the heart of the applicant's claim.” 8 U.S.C.
6 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
7 163-64 (2d Cir. 2008) (per curiam).
8 In this case, the agency’s adverse credibility
9 determination is supported by substantial evidence. The
10 agency reasonably relied on several inconsistences and
11 omissions in finding Lin incredible. First, Lin was
12 inconsistent regarding whether police hit his grandfather
13 during the church raid. Both his credible fear interview
14 and asylum application contain his assertions that his
15 grandfather was hit, but Lin testified that he was not.
16 When asked to explain, he said that he told the asylum
17 officer it did not happen and that the translator may have
18 made a mistake. The IJ reasonably relied on Lin’s inability
19 to reconcile this inconsistency in finding him incredible,
20 particularly because the statement was also included in his
21 asylum application. Zhou Yun Zhang v. United States, 386
22 F.3d 66, 74 (2d Cir. 2004), overruled on other grounds by
3
1 Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d
2 Cir. 2007); Xiu Xia Lin, 534 F.3d at 167.
3 In addition, Lin mentioned for the first time at his
4 hearing that he started going to church in China because he
5 was depressed after his restaurant failed, forcing him to
6 return home. When asked why he had never mentioned his
7 depression in his prior statements, he said he did not think
8 to but that he wanted to tell his entire story at the
9 hearing. The IJ reasonably relied on this omission in
10 making his adverse credibility determination. Xiu Xia Lin,
11 534 F.3d at 163-64, 166. Lin also admitted that he lied
12 about his employment history in his credible fear interview.
13 We have held that in certain circumstances “a single false
14 document or a single instance of false testimony may (if
15 attributable to the petitioner) infect the balance of the
16 alien’s uncorroborated or unauthenticated evidence.” See
17 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007). As Lin
18 concedes that he made a false statement to an immigration
19 officer, and does not allege that this statement was made
20 under coercion, the IJ’s conclusion that Lin’s false
21 statement rendered him incredible was not in error. It
22 demonstrated his willingness to lie under oath to avoid
23 removal. Id. at 170.
4
1 The IJ also found Lin’s demeanor less than candid or
2 forthright. While the IJ did not elaborate on this finding,
3 we typically afford particular deference to demeanor
4 findings. Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104,
5 113 (2d Cir. 2005); see also Majidi v. Gonzales, 430 F.3d
6 77, 81 n.1 (2d Cir. 2005). Finally, Lin failed to take
7 advantage of the IJ’s offer of a continuance to obtain his
8 priest’s testimony in order to corroborate his religious
9 activities in the United States. The agency properly found
10 that this refusal reflected poorly on Lin’s credibility.
11 See Biao Yang v. Gonzalez, 496 F.3d 268, 273 (2d Cir. 2007).
12 Accordingly, considering the totality of the
13 circumstances and all relevant factors, the agency's
14 credibility determination is supported by substantial
15 evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
16 534 F.3d at 163-64. Because the IJ reasonably concluded
17 that Lin was not credible, the adverse credibility
18 determination in this case precludes success on his claims
19 for asylum, withholding of removal and CAT, as all three
20 were based on the same factual predicate. See Paul v.
21 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
22 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005). We
5
1 have considered all of Lin’s remaining arguments and find
2 them without merit.
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
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