Bing Zhen Lin v. Holder ( 2010 )

09-2451-ag
Bing v. Holder
BIA
Hom, IJ
A094 923 274
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 12 th day of May, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 REENA RAGGI,
10 Circuit Judges.
11 ______________________________________
12
13 BING ZHEN LIN,
14 Petitioner,
15
16 v. 09-2451-ag
17 NAC
18 ERIC H. HOLDER, JR.,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Keith I. McManus, Senior
27 Litigation Counsel; Tracie N. Jones,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Bing Zhen Lin, a native and citizen of the People’s
6 Republic of China, seeks review of a May 26, 2009, order of
7 the BIA affirming the August 14, 2007, decision of
8 Immigration Judge (“IJ”) Sandy K. Hom, which denied Lin’s
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Bing
11 Zhen Lin, No. A094 923 274 (BIA May 26, 2009), aff’g No.
12 A094 923 274 (Immig. Ct. N.Y. City Aug. 14, 2007). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision including the portions not explicitly
17 discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d
18 391, 394 (2d Cir. 2005). The applicable standards of review
19 are well-established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
20 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); Salimatou
21 Bah v. Mukasey, 529 F.3d 99, 104 (2d Cir. 2008).
22 Substantial evidence supports the agency’s adverse
23 credibility determination. See Xiu Xia Lin, 534 F.3d at
2
1 167. The IJ found Lin’s testimony not credible based on:
2 (1) her response during her initial interview that she did
3 not fear persecution or torture if returned to China; (2)
4 her inconsistent testimony and lack of corroboration
5 regarding her husband’s gambling debts; (3) her testimony
6 that although she was a fugitive, she departed China without
7 difficulty; (4) inconsistencies between her testimony and
8 letters she submitted from her father and her friend; and
9 (5) implausible aspects of her claim. We are not compelled
10 to find error in any of these findings, or in the IJ’s
11 refusal to credit the explanations Lin offered. See id;
12 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). In
13 particular, the IJ reasonably found “critical” Lin’s
14 statement to authorities upon her arrival in this country
15 that she did not fear persecution if returned to China. The
16 IJ did not err in relying on the record of Lin’s initial
17 interview because the complete interview transcript appears
18 in the record. See Ramsameachire v. Ashcroft, 357 F.3d 169,
19 179 (2d Cir. 2004). Moreover, Lin admitted that her
20 responses to the other questions were accurate, that she was
21 provided with an interpreter, and that the interview record
22 bore her signature, photo, and fingerprint. Id. That
23 statement, coupled with the other discrepancies the IJ
3
1 identified, provides ample support for the IJ’s adverse
2 credibility determination.
3 Substantial evidence also supports the agency’s
4 conclusion that Lin failed to establish a well-founded fear
5 of persecution based on her alleged practice of Falun Gong
6 in the United States. Lin admitted that rather than
7 reflecting her ongoing practice, the photographs she
8 submitted in support of that claim were taken on a single
9 day. Moreover, she was unable to explain the meaning of the
10 “Nine Commentaries” banner she was holding in one of the
11 photographs. Lin failed to provide additional corroborating
12 evidence, such as testimony from her fellow Falun Gong
13 practitioners or examples of the books and CDs she claimed
14 to study. Accordingly, we find no error in the agency’s
15 conclusion that Lin failed to establish a well-founded fear
16 of persecution. See Jian Xing Huang v. INS, 421 F.3d 125,
17 128-29 (2d Cir. 2005) (holding that a fear is not
18 objectively reasonable if it lacks “solid support” in the
19 record and is merely “speculative at best.”); see also
20 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008)
21 (holding that to establish a well-founded fear of
22 persecution in the absence of any evidence of past
23 persecution, an alien must make some showing that
4
1 authorities in his country of nationality are either aware
2 or likely to become aware of his activities). Accordingly,
3 the agency’s denial of Lin’s application for asylum,
4 withholding of removal, and CAT relief was proper. See Paul
5 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
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