Li Xiong Lin v. Holder , 367 F. App'x 203 ( 2010 )

09-0302-ag
Lin v. Holder
BIA
Sichel, IJ
A079 087 431
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 23 rd day of Februry, two thousand ten.
PRESENT:
REENA RAGGI,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
LI XIONG LIN,
Petitioner,
v. 09-0302-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, *
Respondent.
______________________________________
FOR PETITIONER: Fuhao Yang, New York, New York.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Blair T. O’Connor,
Assistant Director; Remi Adalemo,
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Li Xiong Lin, a native and citizen of the People’s
Republic of China, seeks review of a December 24, 2008 order
of the BIA, affirming the April 19, 2007 decision of
Immigration Judge (“IJ”) Helen Sichel, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Li
Xiong Lin, No. A079 087 431 (B.I.A. Dec. 24, 2008), aff’g
No. A079 087 431 (Immig. Ct. N.Y. City Apr. 19, 2007). In
light of the facts of this case, we review the IJ’s decision
as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 522 (2d Cir. 2005). We will uphold
the agency’s factual findings, including adverse credibility
determinations, so long as they are supported by substantial
evidence. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009); Corovic v.
Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). However, “[w]e
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review de novo questions of law and the application of law
to undisputed fact.” Salimatou Bah v. Mukasey, 529 F.3d 99,
110 (2d Cir. 2008). In applying these standards, we assume
the parties’ familiarity with the underlying facts and the
record of prior proceedings.
Given the cumulative effect of various inconsistencies
in Lin’s testimony, the agency’s adverse credibility
determination is supported by substantial evidence. See Tu
Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006); Liang
Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-107 (2d Cir.
2006). In particular, Lin’s testimony was inconsistent as
to whether his brother – the owner of the bookstore where
Lin allegedly sold Falun Gong books – fled after Lin’s first
or second alleged incident with Chinese officials, whether
Lin failed to put his passport into evidence because it had
expired or because he had misplaced it, and whether Lin used
his own passport or someone else’s to fly from Los Angeles
to New York.
Although Lin argues that the agency erred in relying on
these inconsistencies given their relative insignificance,
the agency was entitled to weigh the cumulative effect of
the inconsistencies when measured against the record as a
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whole. See Liang Chen, 454 F.3d at 106-07. The agency was
also entitled to discount Lin’s explanations that he
testified inconsistently because he was nervous. See Majidi
v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
Having found Lin’s testimony not credible, the agency
considered whether his claims were corroborated by other
evidence. While the agency acknowledged the existence of an
unauthenticated Notice of the Town Committee and an
affidavit from Lin’s father, both of which purported to
support Lin’s claim, it declined to accord substantial
weight to this evidence because documentation from China is
subject to widespread fraud and Lin’s father had significant
familial reasons to corroborate Lin’s claims. On this
record, we cannot conclude that the agency acted outside its
discretion in deeming the lack of corroborating evidence
further support for its adverse credibility finding. See
Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007); see
also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
342 (2d Cir. 2006) (recognizing that weight afforded to
applicant’s evidence in immigration proceedings lies largely
within discretion of IJ).
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As Lin’s claims for asylum and withholding of removal
share the same factual predicate, the agency’s adverse
credibility determination constitutes a sufficient basis for
its denial of both claims. See Paul v. Gonzales, 444 F.3d
148, 156 (2d Cir. 2006). Accordingly, we need not consider
the IJ’s or the agency’s alternative bases for denying these
claims.
Finally, because Lin provided no credible evidence that
he was tortured in the past or that anyone in the Chinese
government would seek to torture him upon his return to
China, we identify no error in the agency’s denial of his
request for CAT relief. See Pierre v. Gonzales, 502 F.3d
109, 114 (2d Cir. 2007); Hongsheng Leng v. Mukasey, 528 F.3d
135, 143 (2d Cir. 2008).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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