Long Jin v. Holder ( 2013 )

12-161
Jin v. Holder
BIA
Nelson, IJ
A087 446 531
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 30th day of September, two thousand thirteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 LONG JIN,
14 Petitioner,
15
16 v. 12-161
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Long Jin, Pro Se, Flushing, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; James A. Hunolt,
28 Senior Litigation Counsel; Kohsei
29 Ugumori, Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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
4 is DENIED.
5 Long Jin, a native and citizen of the People’s Republic
6 of China, seeks review of a December 16, 2011 decision of
7 the BIA affirming the February 4, 2010 decision of an
8 Immigration Judge (“IJ”), which pretermitted his application
9 for asylum and denied his application for withholding of
10 removal and relief under the Convention Against Torture
11 (“CAT”). In re Long Jin, No. A087 446 531 (B.I.A. Dec. 16,
12 2011), aff’g No. A087 446 531 (Immig. Ct. N.Y. City Feb. 4,
13 2010). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 We review the decision of the IJ as modified and
16 supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d
17 268, 271 (2d Cir. 2005); 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); Yanqin Weng v. Holder, 562 F.3d 510, 513
21 (2d Cir. 2009). Because Jin does not challenge the IJ’s
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1 pretermission of his asylum application as untimely, we
2 consider only withholding of removal and CAT relief.
3 For applications such as Jin’s, governed by the
4 amendments made to the Immigration and Nationality Act by
5 the REAL ID Act of 2005, the agency may, considering the
6 totality of the circumstances, base a credibility finding on
7 the applicant’s “demeanor, candor, or responsiveness,” the
8 plausibility of her account, and inconsistencies in her
9 statements, without regard to whether they go “to the heart
10 of the applicant’s claim.” See 8 U.S.C.
11 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin v.
12 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We will “defer
13 . . . to an IJ’s credibility determination unless, from the
14 totality of the circumstances, it is plain that no
15 reasonable fact-finder could make” such a ruling. Xiu Xia
16 Lin, 534 F.3d at 167.
17 Here, the IJ reasonably based her credibility finding
18 on Jin’s inconsistent testimony and inconsistencies between
19 his testimony and his documentary evidence. Indeed, the
20 record reflects that: (1) Jin’s testimony that he stopped
21 receiving salary payments in 2003 was contrary to his later
22 testimony that the payments had stopped in 2001 and 2004,
3
1 and also contrary to his statement in his asylum application
2 that his salary was first withheld in 2004; (2) Jin’s
3 testimony that 380 individuals, 200 of whom were workers,
4 attended the first protest he organized was contrary to his
5 asylum application statement and his wife’s letter, which
6 stated that 80 workers attended the protest; and (3) Jin’s
7 testimony that he was dismissed on May 2, 2005, was contrary
8 to his testimony and his statement in his asylum application
9 that he was dismissed on March 17, 2005, after his second
10 detention.
11 The IJ also reasonably relied on omissions from Jin’s
12 asylum application of any mention that he had been beaten
13 during his first police detention and that he had been
14 suspended after that detention, and on his failure to
15 testify about the complaints he filed against his company,
16 which he mentioned in his asylum application. See Xiu Xia
17 Lin, 534 F.3d at 167 (providing that an IJ may support an
18 adverse credibility determination with “any inconsistency or
19 omission”).
20 The IJ was not required to credit Jin’s explanations
21 for these inconsistencies and omissions. See Majidi v.
22 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (providing that
4
1 the agency need not credit an applicant’s explanations for
2 inconsistent testimony unless those explanations would
3 compel a reasonable fact-finder to do so). Jin’s
4 explanations regarding the number of protesters did not
5 explain his testimony that only 200, not 380, workers
6 attended the first protest he organized, and his explanation
7 that he was confused when he first testified that his salary
8 payments stopped in 2003 did not explain why he later
9 changed his testimony twice. Because the IJ’s assessment of
10 Jin’s demeanor as hesitant and non-responsive is supported
11 by these “specific examples of inconsistent testimony,” we
12 also defer to that finding. Li Hua Lin v. U.S. Dep’t of
13 Justice, 453 F.3d 99, 109 (2d Cir. 2006).
14 The IJ also reasonably afforded minimal weight to the
15 letters Jin submitted from his wife and his colleague
16 because his wife’s letter was written by an interested
17 party, not notarized, and conflicted with his testimony
18 regarding the number of protesters, and his colleague’s
19 letter conflicted with his testimony that both workers and
20 their spouses attended the first protest. See Xiao Ji Chen
21 v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)
22 (noting that the weight to be accorded to documentary
23 evidence lies largely within the IJ’s discretion). Given
5
1 the discrepancies between Jin’s application and testimony,
2 the IJ reasonably relied on the lack of reliable
3 corroboration as further bearing on his credibility. Chuilu
4 Liu v. Holder, 575 F.3d 193, 198 n.5 (2d Cir. 2009); see
5 also Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).
6 Based on the inconsistencies, omissions, and lack of
7 corroboration to rehabilitate Jin’s testimony, as well as
8 the agency’s demeanor finding to which we defer, the adverse
9 credibility determination is supported by substantial
10 evidence. Because the only evidence of a threat to Jin’s
11 life or freedom, or that he was likely to be tortured,
12 depended upon his credibility, the adverse credibility
13 determination in this case precludes success on his claims
14 for both withholding of removal and CAT relief. See Paul v.
15 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of
18 removal that the Court previously granted in this petition
19 is VACATED, and any pending motion for a stay of removal in
20 this petition is DISMISSED as moot. Any pending request for
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1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
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