Yinghua Jin v. Holder , 517 F. App'x 43 ( 2013 )

11-263
Jin v. Holder
BIA
Hom, IJ
A 098 466 505
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 15th day of April, two thousand thirteen.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
12 _____________________________________
13
14 YINGHUA JIN,
15 Petitioner,
16
17 v. 11-263
18 NAC
19 ERIC H. HOLDER, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Ronald D. Richey, Rockville, MD
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Thomas B.
28 Fatouros, Senior Litigation Counsel;
29 Karen Y. Stewart, Attorney, Office
30 of Immigration Litigation, U.S.
31 Department of Justice, Washington,
32 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 DISMISSED in part and DENIED in part.
5 Yinghua Jin, a native and citizen of China, seeks
6 review of a December 22, 2010, order of the BIA affirming
7 the January 6, 2009, decision of Immigration Judge (“IJ”)
8 Sandy K. Hom, which denied her application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Yinghua Jin, No. A098 466
11 505 (B.I.A. Dec. 22, 2010), aff’g No. A098 466 505 (Immig.
12 Ct. N.Y. City Jan. 6, 2009). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 I. Asylum - Pretermission
16 Jin’s argument that the IJ ignored changed country
17 conditions based on her membership in the Chinese Democracy
18 and Justice Party (CDJP) as a basis for finding her asylum
19 application timely is misplaced as the IJ found her
20 application time-barred only as to past persecution and
21 denied asylum on the merits with respect to her fear of
22 future persecution based on her CDJP activities in the
2
1 United States. Further, the BIA, albeit in the context of
2 determining Jin’s withholding claim, considered whether Jin
3 was eligible for asylum and fully addressed the merits of
4 her future persecution claim before denying relief. Thus,
5 as Jin has not raised a colorable constitutional claim or
6 question of law as to the agency’s determination that her
7 asylum application was time-barred, we do not further
8 address the pretermission finding. See 8 U.S.C.
9 §§ 1158(a)(3) (providing that federal courts lack
10 jurisdiction to review agency’s pretermission of asylum as
11 untimely), 1252(a)(2)(D) (preserving review of
12 constitutional claims and questions of law).
13 II. Asylum, Withholding of Removal, and CAT - Merits
14 Under the circumstances of this case, we have
15 considered both the IJ’s and the BIA’s opinions “for the
16 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
17 (2d Cir. 2008). The applicable standards of review are
18 well-established. See 8 U.S.C. § 1252(b)(4)(B); see also
19 Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).
20 For asylum applications, such as this one, governed by
21 the REAL ID Act, the agency may, considering the totality of
22 the circumstances, base a credibility finding on an asylum
3
1 applicant’s demeanor, the plausibility of his account, and
2 inconsistencies in his statements, without regard to whether
3 they go “to the heart of the applicant’s claim.” 8 U.S.C.
4 § 1158(b)(1)(B)(iii). Substantial evidence supports the
5 agency’s adverse credibility determination.
6 In finding Jin not credible, the agency reasonably
7 relied on Jin’s demeanor, as well as instances of
8 inconsistent and implausible testimony. Id. We give
9 particular deference to the demeanor finding as the record
10 shows multiple occasions on which Jin paused for a long time
11 prior to responding to questions. See Majidi v. Gonzales,
12 430 F.3d 77, 81 n.1 (2d Cir. 2005). The adverse credibility
13 determination is further supported by specific examples of
14 Jin’s inconsistent and implausible testimony. See Xiu Xia
15 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per
16 curiam). For example, as the agency found, Jin provided
17 inconsistent testimony with respect to whether her pro-
18 democracy activities on behalf of the CDJP would have
19 negative repercussions for her family in China. See Xiu Xia
20 Lin, 534 F.3d at 167. Furthermore, the agency reasonably
21 found implausible Jin’s assertion that she did not know the
22 contents of her applications for employment authorization
4
1 and for adjustment of status, given that Jin had included
2 with her applications the requisite identification materials
3 and had signed her adjustment of status application.
4 See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Wensheng Yan v.
5 Mukasey, 509 F.3d 63, 67 (2d Cir. 2007) (holding that where
6 the IJ’s findings are “tethered to record evidence, and
7 there is nothing else in the record from which a firm
8 conviction of error could properly be derived,” we will not
9 disturb the inherent implausibility finding). A reasonable
10 fact finder would not be compelled to credit Jin’s
11 explanations for her inconsistent and implausible testimony.
12 See Majidi, 430 F.3d at 80-81.
13 Ultimately, given the demeanor, inconsistency, and
14 implausibility findings, the agency’s adverse credibility
15 determination is supported by substantial evidence. See Xiu
16 Xia Lin, 534 F.3d at 165-66. Accordingly, the agency’s
17 denial of relief was not in error as all of the claims
18 shared the same factual predicate. See Paul v. Gonzales,
19 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. Dep’t of
20 Justice, 426 F.3d 520, 523 (2d Cir. 2005). Because the
21 adverse credibility determination is dispositive, we do not
22
5
1 reach the agency’s alternative finding that, even if
2 credible, Jin failed to meet her burden of proof.
3 For the foregoing reasons, the petition for review is
4 DISMISSED in part and DENIED in part. As we have completed
5 our review, any stay of removal that the Court previously
6 granted in this petition is VACATED, and any pending motion
7 for a stay of removal in this petition is DISMISSED as moot.
8 Any pending request for oral argument in this petition is
9 DENIED in accordance with Federal Rule of Appellate
10 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
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