Guang Yu Jin v. Holder , 518 F. App'x 7 ( 2013 )

12-689
Jin v. Holder
BIA
Hom, IJ
A087 445 663
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 25th day of April, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 PIERRE N. LEVAL,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 GUANG YU JIN,
15 Petitioner,
16
17 v. 12-689
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Guang Jun Gao, Flushing, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Leslie McKay,
28 Assistant Director; Kelly J. Walls,
29 Trial 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 DISMISSED in part and DENIED in part.
5 Guang Yu Jin, a native and citizen of China, seeks
6 review of a February 1, 2012, decision of the BIA affirming
7 the December 1, 2009, decision of Immigration Judge (“IJ”)
8 Sandy K. Hom, which pretermitted her asylum application as
9 untimely, and denied her applications for withholding of
10 removal, and for protection under the Convention Against
11 Torture (“CAT”). In re Guang Yu Jin, No. A087 445 663
12 (B.I.A. Feb. 1, 2012), aff’g No. A087 445 663 (Immig. Ct.
13 N.Y. City Dec. 1, 2009). We assume the parties’ familiarity
14 with the underlying facts and procedural history in this
15 case.
16 Jin challenges the agency’s denial of her asylum
17 application as untimely, asserting that she established
18 changed circumstances excusing her untimely filing. See
19 8 U.S.C. § 1158(a)(2)(D). Although we lack jurisdiction to
20 review timeliness determinations, see 8 U.S.C. § 1158(a)(3),
21 (a)(2)(B), we retain jurisdiction to review constitutional
22 claims and “questions of law,” 8 U.S.C. § 1252(a)(2)(D).
23 Jin does not raise such a claim or question, however, but
2
1 merely disagrees with the agency’s fact-finding. Thus, we
2 lack jurisdiction to review this claim. See Barco-Sandoval
3 v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008).
4 Jin also challenges the agency’s denial of her
5 application for withholding of removal under 8 U.S.C.
6 § 1231(b)(3). Under the circumstances of this case, we have
7 reviewed the IJ’s decision as modified by the BIA. Yun-Zui
8 Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). For
9 applications such as Jin’s, governed by the amendments made
10 to the Immigration and Nationality Act by the REAL ID Act of
11 2005, the agency may, considering the totality of the
12 circumstances, base a credibility finding on the applicant’s
13 “demeanor, candor, or responsiveness,” the plausibility of
14 his account, and inconsistencies in his statements, without
15 regard to whether they go “to the heart of the applicant’s
16 claim.” See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);
17 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
18 We will “defer to an IJ’s credibility determination unless,
19 from the totality of the circumstances, it is plain that no
20 reasonable fact-finder could make” such a ruling. Xiu Xia
21 Lin, 534 F.3d at 167. In this case, the IJ’s adverse
22 credibility determination is supported by substantial
23 evidence.
3
1 The IJ reasonably based his credibility finding on
2 inconsistencies in Jin’s testimony and documents regarding
3 the political organizations she belonged to in the United
4 States, including discrepancies regarding when she joined
5 these organizations. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),
6 1231(b)(3)(C), Xiu Xia Lin, 534 F.3d at 167. Jin did not
7 demonstrate how alleged difficulties with interpretation at
8 the hearing contributed to these inconsistencies, and did
9 not provide explanations for her inconsistent statements
10 that any reasonable fact-finder would be compelled to
11 accept. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
12 2005). The IJ also reasonably noted Jin’s failure to
13 provide testimony from any persons in the United States who
14 could corroborate or clarify her political activities. See
15 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
16 Finally, the agency did not err in denying Jin’s
17 application for protection under CAT, as she did not
18 establish that her past experiences in China constituted
19 torture, or that a person in her particular circumstances
20 would face torture if returned to China. See 8 C.F.R.
21 § 1208.18(a); Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d
22 Cir. 2004); Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir.
23 2003).
4
1 For the foregoing reasons, the petition for review is
2 DISMISSED in part and DENIED in part. As we have completed
3 our review, any stay of removal that the Court previously
4 granted in this petition is VACATED, and any pending motion
5 for a stay of removal in this petition is DISMISSED as moot.
6 Any pending request for oral argument in this petition is
7 DENIED in accordance with Federal Rule of Appellate
8 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
5