Dung Min Lin v. Holder ( 2013 )

12-657
Lin v. Holder
BIA
Sichel, IJ
A095 673 960
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 August, two thousand thirteen.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 DUNG MIN LIN, AKA RICHARD TRAN,
14 Petitioner,
15
16 v. 12-657
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Zhong Yue Zhang, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Jennifer Paisner
27 Williams, Anthony C. Payne, Senior
28 Litigation Counsel; Carla J. Weaver,
29 Law Clerk, Office of Immigration
30 Litigation, United States Department
31 of Justice, 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 Dung Min Lin, a native and citizen of the People’s
6 Republic of China, seeks review of a February 1, 2012,
7 decision of the BIA affirming the March 18, 2010, decision
8 of Immigration Judge (“IJ”) Helen Sichel, denying his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”).1 In re Dung
11 Min Lin, a.k.a. Richard Tran, No. A095 673 960 (B.I.A. Feb.
12 1, 2012), aff’g No. A095 673 960 (Immig. Ct. N.Y. City Mar.
13 18, 2010). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 We review the IJ’s decision as supplemented by the BIA.
16 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
17 The applicable standards of review are well-established.
18 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
19 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
1
The BIA noted that Lin did not pursue the CAT claim in
his appeal to the BIA and, likewise, he has not pursued that
claim in his brief to this Court. Accordingly, we deem the CAT
claim abandoned. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
542 n.1 (2d Cir. 2005).
2
1 For asylum applications governed by the REAL ID Act,
2 such as the application in this case, the agency may,
3 considering the totality of the circumstances, base a
4 credibility finding on an asylum applicant’s demeanor, the
5 plausibility of his account, and inconsistencies in his
6 statements, without regard to whether they go “to the heart
7 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
8 We “defer therefore to an IJ’s credibility determination
9 unless, from the totality of the circumstances, it is plain
10 that no reasonable fact-finder could make such an adverse
11 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. Here,
12 substantial evidence supports the agency’s adverse
13 credibility determination.
14 In finding Lin not credible, the agency reasonably
15 relied on inconsistent statements in the record regarding
16 how Lin’s parents learned of his purported arrest. See Xiu
17 Xia Lin, 534 F.3d at 165-66; see also Majidi v. Gonzales,
18 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more
19 than offer a plausible explanation for his inconsistent
20 statements to secure relief; he must demonstrate that a
21 reasonable fact-finder would be compelled to credit his
22 testimony.” (internal quotation marks and emphasis
23 omitted)). The IJ further reasonably relied, for example,
3
1 on an inconsistency between Lin’s statement at an airport
2 interview that he was arrested for carrying a yellow Falun
3 Gong flag in the street and his testimony that he was
4 arrested for passing out flyers and did not carry a flag.
5 See Xiu Xia Lin, 534 F.3d at 166-67; see also Ramsameachire
6 v. Ashcroft, 357 F.3d 169, 179-81 (2d Cir. 2004) (requiring
7 the agency to assess the reliability of an airport interview
8 and recognizing the reliability of a verbatim transcript).
9 The agency also did not err in relying on Lin’s
10 omission from his asylum application of his assertion that
11 he required medical treatment for a burn caused by
12 government officials while he was in detention. See Xiu Xia
13 Lin, 534 F.3d at 166 n.3 (“An inconsistency and an omission
14 are . . . functionally equivalent.”). Although asylum
15 applicants are not required to list every incident or
16 provide every detail in their asylum applications because
17 the application form provides only limited space, see
18 Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006), the agency
19 was not compelled to credit Lin’s explanation that he was
20 unable to provide such details as he attached to his
21 application a three-page statement that included numerous
22 facts irrelevant to his claim of past persecution. See
4
1 Majidi, 430 F.3d at 80-81; see also Xiu Xia Lin, 534 F.3d at
2 166-67.
3 The IJ reasonably concluded that Lin’s testimony was
4 further undermined by his admission that he made false
5 statements during his airport interview thereby indicating a
6 willingness to lie to remain in the country. See Siewe v.
7 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007). Given these
8 false statements, as well as the record inconsistencies, the
9 agency’s adverse credibility determination is supported by
10 substantial evidence. See Xiu Xia Lin, 534 F.3d at 167.
11 Accordingly, the agency did not err in denying asylum and
12 withholding of removal. See Paul v. Gonzales, 444 F.3d 148,
13 156 (2d Cir. 2006).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
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5
1 this petition is DENIED as moot. Any pending request for
2 oral argument in this petition is DENIED in accordance with
3 Federal Rule of Appellate Procedure 34(a)(2), and Second
4 Circuit Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
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