Xue Mei Lin v. Holder ( 2010 )

09-1662-ag
Lin v. Holder
BIA
Abrams, IJ
A098 986 488
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 21st day of October, two thousand ten.
PRESENT:
REENA RAGGI,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
XUE MEI LIN,
Petitioner,
v. 09-1662-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Thomas V. Massucci, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; Lyle D.
Jentzer, Mark C. Walters, Senior
Litigation Counsels, Office of
Immigration Litigation, Civil
Division, U.S. Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Petitioner Xue Mei Lin, a native and citizen of the
People’s Republic of China, seeks review of a March 27, 2009
order of the BIA affirming the July 2, 2007 decision of
Immigration Judge (“IJ”) Steven R. Abrams denying petitioner’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Xue Mei
Lin, No. A 098 986 488 (B.I.A. Mar. 27, 2009), aff’g No. A 098
986 488 (Immig. Ct. N.Y. City July 2, 2007). We assume the
parties’ familiarity with the underlying facts and procedural
history of the case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well-established. See Corovic v.
Mukasey, 519 F.3d 90, 95 (2d Cir. 2008); Salimatou Bah v.
Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
Substantial evidence supports the IJ’s adverse
credibility determination. In evaluating Lin’s credibility,
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the IJ found that: (1) it was implausible that Lin began
practicing Falun Gong at her neighbor’s suggestion, but that
her neighbor never explained to her the benefits of Falun Gong
or how it would help her health condition; (2) it was
implausible that Lin had been practicing Falun Gong for almost
three years, but was unable to name or perform any of the
exercises beyond the first movement or to explain anything
about the movements; and (3) Lin failed adequately to
corroborate her testimony.
While Lin’s argument that the IJ erred in relying on her
lack of doctrinal knowledge of Falun Gong as a basis for the
adverse credibility determination has some force, we identify
no error in the IJ’s reliance on Lin’s inability to name or
perform any of the Falun Gong exercises beyond the first
movement given Lin’s assertion that she had practiced Falun
Gong for almost three years. See Rizal v. Gonzales, 442 F.3d
84, 90 (2d Cir. 2006). Additionally, because the IJ
reasonably found Lin’s testimony not credible, the IJ did not
err in finding that Lin failed to rehabilitate her testimony
with corroborating evidence. See Biao Yang v. Gonzales, 496
F.3d 268, 273 (2d Cir. 2007); see also Maladho Djehe Diallo,
445 F.3d 624, 633-34 (2d Cir. 2006). For the foregoing
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reasons, the IJ’s adverse credibility determination is
supported by substantial evidence.
Because the IJ did not consider Lin’s claim of
persecution based on involuntary insertion of an intrauterine
device (“IUD”), his adverse credibility determination is not
dispositive in that respect. Nevertheless, substantial
evidence supports the BIA’s finding that Lin failed to
establish past persecution, as the insertion of an IUD does
not constitute persecution per se, and Lin failed to identify
any aggravating circumstances sufficient to render such
insertion persecutive.
Although Lin argues that the harm the IUD caused her
constituted an aggravating circumstance, the BIA noted (1) the
absence of any evidence that Lin failed to attend the routine
examinations required of her and (2) Lin’s failure to have the
IUD removed until almost nine years later when she arrived in
the United States. In light of these findings and Lin’s
failure further to develop the record regarding this claim,
the BIA reasonably concluded that Lin failed to establish that
insertion of the IUD constituted past persecution. See 8
U.S.C. § 1229a(c)(4)(B); Xia Fan Huang v. Holder, 591 F.3d
124, 129-30 (2d Cir. 2010); Matter of M-F-W- & L-G-, 24 I. &
N. Dec. 633, 640-42 (BIA 2008).
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Because Lin failed to demonstrate that she was eligible
for asylum, she necessarily failed to meet the higher burden
required for withholding of removal and CAT relief. See Paul
v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
Accordingly, the petition for review is DENIED. As we
have completed our review, any pending motion for a stay of
removal in this petition is DISMISSED as moot. Any pending
request for oral argument in this petition is DENIED in
accordance with Federal Rule of Appellate Procedure 34(a)(2),
and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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