Xiuluo Jin v. Holder , 447 F. App'x 276 ( 2012 )

11-1681-ag
Jin v. Holder
BIA
Laforest, IJ
A093 451 553
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 12th day of January, two thousand twelve.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 ROBERT A. KATZMANN,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 XIULUO JIN,
14 Petitioner,
15
16 v. 11-1681-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Emanuel Liu, Flushing, NY.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Keith I. McManus, Senior
27 Litigation Counsel; Lindsay M.
28 Murphy, Trial Attorney; Sheila
29 Gholkar, Law Clerk, 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 DENIED.
5 Xiuluo Jin, a native of North Korea and citizen of the
6 People’s Republic of China, seeks review of an April 6,
7 2011, decision of the BIA affirming the December 17, 2008
8 decision of Immigration Judge (“IJ”) Brigitte Laforest,
9 which denied her application for asylum, withholding of
10 removal, and relief under the Convention Against Torture
11 (“CAT”). In re Xiuluo Jin, No. A093 451 553 (B.I.A. April
12 6, 2011), aff’g No. A093 451 553 (Immig. Ct. N.Y. City Dec.
13 17, 2008). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the BIA's and the IJ's opinions - or more precisely, we
17 have reviewed the IJ's decision including the portions not
18 explicitly discussed by the BIA. See Yun-Zui Guan v.
19 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
20 standards of review are well-established. See 8 U.S.C.
21 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d
22 510, 513 (2d Cir. 2009).
23
2
1 For asylum applications such as Jin’s, governed by the
2 amendments made to the Immigration and Nationality Act by
3 the REAL ID Act of 2005, the agency may, considering the
4 totality of the circumstances, base a credibility finding on
5 an asylum applicant’s “demeanor, candor, or responsiveness,”
6 the plausibility of his or her account, and inconsistencies
7 in her or her statements, without regard to whether they go
8 “to the heart of the applicant’s claim.” See 8 U.S.C.
9 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
10 167 (2d Cir. 2008). We will “defer... to an IJ’s
11 credibility determination unless, from the totality of the
12 circumstances, it is plain that no reasonable fact-finder
13 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
14 In this case, the agency reasonably based its adverse
15 credibility determination on internal inconsistencies in
16 Jin’s testimony, inconsistencies between Jin’s asylum
17 application and her testimony, inconsistencies between Jin’s
18 testimony and the documentary evidence, and the lack of
19 sufficient corroborating evidence.
20 For example, Jin testified that she had never been
21 arrested, before later stating that she had been arrested
22 and detained for three days in China for her participation
23 in an underground church. Jin then testified inconsistently
3
1 as to the date of that arrest, and her asylum application
2 omitted any mention of the arrest for her religious
3 activities, which formed the basis for her professed fear of
4 future persecution. These inconsistencies were proper
5 grounds for the IJ’s adverse credibility finding. See
6 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166.
7 There were also discrepancies as to Jin’s claim that
8 she was forced to have two abortions in 1990. Jin submitted
9 an abortion certificate dated December 16, 1990, stating
10 that she had requested and received an abortion in May 1990,
11 and that she induced another abortion in December 1990 due
12 to her becoming pregnant while using birth control. Jin
13 initially stated that she received the certificate
14 immediately after the May 1990 abortion, before changing her
15 testimony to state that she received it in December. While
16 the IJ initially seemed to indicate that Jin’s testimony was
17 consistent with the certificate as to the date, the IJ
18 ultimately concluded that Jin had testified inconsistently
19 on this point.
20 While the IJ’s seeming initial acceptance of this
21 testimony may not have alerted Jin to the need to clarify or
22 corroborate the date she received the certificate, the IJ
4
1 did alert Jin to credibility concerns relating to the
2 certificate’s indication that one of Jin’s abortions had
3 been voluntary. Therefore, the need to clarify and
4 corroborate her family planning claim was obvious. See Ming
5 Shi Xue v. Bd. of Immigration Appeals, 439 F.3d 111, 126 (2d
6 Cir. 2006). Additionally, the agency need not give notice
7 and an opportunity to explain a dramatic inconsistency
8 where, as here, the discrepancy went to the very heart of
9 Jin's claim for asylum. Id. at 125.
10 The BIA, in turn, affirmed the IJ’s adverse credibility
11 determination, explicitly addressing Jin’s inconsistencies
12 and omission. Additionally, the BIA reasonably relied on
13 Jin’s lack of sufficient corroborating evidence to find that
14 Jin had failed to rehabilitate her credibility. See Biao
15 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Given
16 the totality of the circumstances, including Jin’s
17 inconsistencies, omissions, and lack of sufficient
18 corroborating evidence, substantial evidence supports the
19 agency’s adverse credibility determination. See 8 U.S.C.
20 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. As the
21 only basis for Jin’s claim depended on her credibility, the
22 adverse credibility determination is also dispositive of her
23 request for withholding of removal and CAT relief. See Paul
5
1 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang
2 v. U.S. Dep't of Justice, 426 F.3d 520, 523 (2d Cir. 2005).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2) and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
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