Li Chun Lin v. Lynch ( 2015 )

13-3060
Lin v. Lynch
BIA
Sichel, IJ
A098 971 357
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 12th day of May, two thousand fifteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 ROSEMARY S. POOLER,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 LI CHUN LIN,
14 Petitioner,
15
16 v. 13-3060
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.*
21 _____________________________________
22
23
24 FOR PETITIONER: Corey T. Lee, Law Offices of Corey
25 T. Lee, PLLC, New York, NY.
26
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Leslie McKay, Assistant
3 Director; Sara Bergene, Trial
4 Attorney, Office of Immigration
5 Litigation, United States Department
6 of Justice, Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Li Chun Lin, a native and citizen of China,
13 seeks review of a July 24, 2013, order of the BIA, affirming
14 the January 12, 2012, decision of an Immigration Judge
15 (“IJ”), which denied asylum, withholding of removal, and
16 relief under the Convention Against Torture (“CAT”). In re
17 Li Chun Lin, No. A098 971 357 (B.I.A. July 24, 2013), aff’g
18 No. A098 971 357 (Immig. Ct. New York City January 12,
19 2012). We assume the parties’ familiarity with the
20 underlying facts and procedural history in this case.
21 Under the circumstances, we have considered both the
22 IJ’s and the BIA’s opinions “for the sake of completeness.”
23 Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). The
24 applicable standards of review are well established. See 8
25 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
26 513 (2d Cir. 2009).
2
1 Because Lin filed his asylum application in April 2005,
2 the REAL ID Act does not apply. See REAL ID Act of 2005,
3 Div. B of Pub. L. No. 109- 13, 119 Stat. 302, 303 (2005)
4 (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)); Matter of S-B-,
5 24 I. & N. Dec. 42, 45 (BIA 2006). In pre-REAL ID Act
6 cases, an adverse credibility determination must be based on
7 “specific, cogent reasons” that “bear a legitimate nexus” to
8 the finding, and any discrepancy must be “substantial” when
9 measured against the record as a whole. See Secaida-
10 Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003), superseded
11 by the REAL ID Act as recognized in Xiu Xia Lin v. Mukasey,
12 534 F.3d 162, 163-64 (2d Cir. 2008).
13 Substantial evidence supports the agency’s adverse
14 credibility determination. Lin omitted from his asylum
15 application and supplementary statement his claim that he
16 was beaten and denied sufficient food and medical care while
17 detained for two days at a family planning office. This
18 information was also omitted from his wife's statement.
19 Minor and isolated discrepancies may be insufficient to
20 support an adverse credibility finding. See Diallo v. INS,
21 232 F.3d 279, 285-86 (2d Cir. 2000); see also Xiu Xia Lin,
22 534 F.3d at 166-67 n.3 (noting that inconsistencies and
3
1 omissions are “functionally equivalent”). As Lin’s claim
2 was predicated on his alleged mistreatment by family
3 planning officials, both the incident, and Lin's omission of
4 it, went to the heart of his asylum claim. See Beskovic v.
5 Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006) (noting that
6 the Court had previously held that two brief detentions
7 without physical mistreatment did not constitute
8 persecution). Accordingly, a “legitimate nexus” existed
9 between his claim and the omission. See Secaida-Rosales v.
10 INS, 331 F.3d at 307-08.
11 Lin’s argument that his omission of the incident was
12 not material because the case law at the time he filed his
13 asylum application allowed him to establish past persecution
14 based on his wife's forced abortion alone is unavailing.
15 See Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997) (finding
16 applicants eligible for asylum based on a spouse’s
17 sterilization); Shi Liang Lin v. U.S. Dep’t of Justice, 494
18 F.3d 296, 308 (2d Cir. 2007) (explicitly rejecting Matter of
19 C-Y-Z- and concluding, inter alia, that “applicants can
20 become candidates for asylum relief only based on
21 persecution that they themselves have suffered or must
22 suffer”). As the agency noted, Lin would reasonably have
4
1 been expected to include the alleged beating, insufficient
2 food, and denial of medical care in his claim because they
3 were not “ancillary or tangential.” See Ye v. DHS, 446 F.3d
4 289, 294-95 (2d Cir. 2006) (finding omission material and
5 affirming adverse credibility finding where asylum applicant
6 testified that he was beaten during detention by family
7 planning officials, but had not included such facts in
8 application).
9 Further, the agency was not required to accept Lin’s
10 explanations for his omission. Lin has offered various
11 explanations for the omission: his attorney failed to
12 include it; the controlling law at the time he filed his
13 application rendered the incident “immaterial”; he did not
14 realize that the incident was not in his application because
15 he “did not pay attention” while it was being read back to
16 him; he was nervous in his asylum application interview; and
17 the asylum officer never asked him about it. However, we
18 generally will not disturb adverse credibility
19 determinations that are based on “specific examples in the
20 record of inconsistent statements . . . about matters
21 material to [an applicant’s] claim of persecution, or on
22 contradictory evidence or inherently improbable testimony
23 regarding such matters.” Zhou Yun Zhang v. INS, 386 F.3d
51 66, 74 (2d Cir. 2004) (internal quotation marks omitted),
2 overruled in part on other grounds by Shi Liang Lin, 494
3 F.3d at 305. Further, an IJ need not credit an applicant’s
4 explanations for inconsistent testimony unless those
5 explanations would compel a reasonable fact-finder to do so.
6 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
7 Because a petitioner is required to offer more than a
8 “plausible explanation,” the IJ was not required to credit
9 Lin’s explanations. See id. at 80.
10 Here, the “adverse credibility finding was based, inter
11 alia, on a specific example of [inconsistent] evidence that
12 undermined the very ‘crux’ of [Lin’s] asylum application.”
13 See Zhou Yi Ni v. U.S. Dep’t of Justice, 424 F.3d 172, 174
14 (2d Cir. 2005). Lin’s omission of a material aspect of his
15 asylum claim “is, standing alone, significant enough to
16 support an adverse credibility finding.” See id. Because
17 the only evidence of a threat to Lin’s life or freedom
18 depended upon his credibility, the adverse credibility
19 determination in this case necessarily precludes success on
20 his claims for asylum, withholding of removal, and CAT
21 relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
22 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
23 523 (2d Cir. 2005). Because the adverse credibility
6
1 determination is dispositive, we need not consider the other
2 arguments Lin raises.
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
13
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