Lan Ying Lin v. Lynch , 634 F. App'x 30 ( 2015 )

13-3723
Lin v. Lynch
BIA
Cheng, IJ
A087 916 040
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.
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
29th day of December, two thousand fifteen.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
LAN YING LIN,
Petitioner,
v. 13-3723
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Troy Nader Moslemi, Esq.,
Flushing, New York.
FOR RESPONDENT: John D. Williams, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, D.C.
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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 Lan Ying Lin, a native and citizen of China,
seeks review of a September 16, 2013 decision of the BIA
affirming an October 19, 2011 decision of an Immigration Judge
(“IJ”) denying Lin’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Lan Ying Lin, No. A087 916 040 (B.I.A. Sept.
16, 2013), aff’g No. A087 916 040 (Immig. Ct. N.Y.C. Oct. 19,
2011). We assume the parties’ familiarity with the underlying
facts and procedural history in this case, which we reference
only as necessary to explain our decision to deny the petition.
Under the circumstances of this case, “we review the
decision of the IJ as supplemented by the BIA.” Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Applying the
“substantial evidence” standard, “we uphold the IJ's factual
findings if they are supported by reasonable, substantial and
probative evidence in the record.” Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009) (internal quotation marks omitted).
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“By contrast, we review de novo questions of law and the BIA's
application of law to undisputed fact.” Id. (internal
alterations and quotation marks omitted); see also 8 U.S.C. §
1252(b)(4).
The IJ’s decision, and the BIA’s affirmance, was based in
part upon an adverse credibility finding against Lin. For
asylum applications governed by the REAL ID Act, such as Lin’s,
the IJ may, considering the totality of the circumstances, base
a credibility finding on an asylum applicant’s demeanor,
candor, or responsiveness, and on inconsistencies in her
statements and other record evidence without regard to whether
they go “to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d 162,
164 (2d Cir. 2008). Here, the totality of the circumstances,
including the inconsistencies in Lin’s testimony and the lack
of corroborating evidence, support the IJ’s adverse credibility
determination.
Notably, although Lin claimed that Chinese officials
arrested, detained, and beat her because she attended an
underground Christian church, her testimony as to these matters
was inconsistent. Thus, she first testified that she was
arrested in July 2009, but later testified that she began
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attending church in July 2009 and was arrested in August 2009.
The IJ acted within his discretion in finding Lin’s
explanation — that she misheard the question — unpersuasive.
See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).
Meanwhile, inconsistency was also evident in a letter from Lin’s
pastor in China, which stated that Lin began attending church
in July 2009, but was dated May 2001.
Lin also testified that she worked at a factory for six
years, and that a friend at the factory introduced her to
Christianity. This was inconsistent with the Household
Register Lin submitted, which lists Lin’s occupation as a
farmer. Moreover, the letter from this friend makes no mention
of the factory where they met. See Xiu Xia Lin v. Mukasey, 534
F.3d at 166 n.3 (“A lacuna in an applicant's testimony or
omission in a document submitted to corroborate the applicant's
testimony, like a direct inconsistency between one or more of
those forms of evidence, can serve as a proper basis for an
adverse credibility determination.”).
As the IJ also reasonably found, Lin’s failure to
rehabilitate her inconsistent testimony with corroborating
evidence further supported the adverse credibility
determination. See Biao Yang v. Gonzales, 496 F.3d 268, 273
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(2d Cir. 2007). Lin’s husband did not testify or submit a
letter on her behalf, although he is present in the United
States, and Lin did not offer a compelling explanation for why
he did not testify. See Yan Juan Chen v. Holder, 658 F.3d 246,
252-53 (2d Cir. 2011). Nor did Lin submit a death certificate
after she claimed that it was her friend’s death in a car
accident that led her to the Christian faith.
Thus, because the IJ’s adverse credibility finding is
supported by substantial evidence, it provides an adequate
basis for denying Lin asylum, withholding of removal, and CAT
relief. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
F.3d at 167; see also Paul v. Gonzalez, 444 F.3d 148, 155–57
(2d Cir. 2006). We, therefore, need not review its alternative
burden finding. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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