Yong Lin v. Holder ( 2014 )

13-3888
Lin v. Holder
BIA
Wright, IJ
A200 828 750
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 3rd day of November, two thousand fourteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 YONG LIN, AKA LIN YONG,
14 Petitioner,
15
16 v. 13-3888
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gary J. Yerman, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Cindy Ferrier, Assistant
28 Director; Kimberly A. Burdge, Trial
29 Attorney, Office of Immigration
1 Litigation, United States Department
2 of Justice, Washington D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Yong Lin, a native and citizen of the
9 People’s Republic of China, seeks review of a September 23,
10 2013, decision of the BIA, affirming the April 25, 2012,
11 decision of an Immigration Judge (“IJ”), denying his
12 application for asylum, withholding of removal, and relief
13 under the Convention Against Torture (“CAT”). In re Yong
14 Lin, No. A200 828 750 (B.I.A. Sep. 23, 2013), aff’g No. A200
15 828 750 (Immig. Ct. N.Y. City Apr. 25, 2012). We assume the
16 parties’ familiarity with the underlying facts and
17 procedural history in this case.
18 Under the circumstances of this case, we have reviewed
19 both the BIA’s and IJ’s opinions. See Zaman v. Mukasey, 514
20 F.3d 233, 237 (2d Cir. 2008)(per curiam). The applicable
21 standards of review are well established. See 8 U.S.C.
22 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-
23 66 (2d Cir. 2008)(per curiam). For asylum applications
24 governed by the REAL ID Act, the agency may, “[c]onsidering
2
1 the totality of the circumstances,” base a credibility
2 finding on inconsistencies in the asylum applicant’s
3 statements and other record evidence “without regard to
4 whether” they go “to the heart of the applicant’s claim.”
5 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
6 64. Here, substantial evidence supports the agency’s
7 determination that Lin was not credible.
8 There were serious inconsistences in Lin’s various
9 statements. At his hearing before the IJ, he claimed he was
10 arrested and beaten by Chinese officials for supporting
11 Falun Gong, but he failed to mention this arrest in his
12 credible fear interview. Xiu Xia Lin, 534 F.3d at 166-67 &
13 n.3. Lin also testified that he deliberately distributed
14 flyers in support of Falun Gong; however, during his
15 credible fear interview, he told the asylum officer that he
16 was unaware of the nature of the flyers when he distributed
17 them. The IJ reasonably relied on these inconsistences in
18 finding Lin not credible. See Zhou Yun Zhang v. I.N.S., 386
19 F.3d 66, 74 (2d Cir. 2004), overruled on other grounds by
20 Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d
21 Cir. 2007); Xui Xia Lin, 534 F.3d at 167.
22
3
1 The IJ also reasonably rejected Lin’s various
2 explanations. While Lin’s asylum application was detailed
3 and coherent, his hearing testimony was not. His
4 application stated that the smuggler who helped him enter
5 the United States told him to omit his 2008 arrest when
6 speaking with U.S. officials; in his testimony, however, he
7 admitted that the smuggler told him to tell U.S. officials
8 the story of his arrest. Moreover, the fact that Lin’s
9 friend told him to tell Chinese authorities that he knew
10 nothing about the Falung Gong flyers he distributed does not
11 explain why Lin would tell U.S. authorities the same story
12 if it was not true and he was attempting to obtain asylum.
13 Finally, Lin’s insistence that he could not understand the
14 interpreter at his credible fear interview is implausible
15 because his asylum application provided a detailed
16 explanation for any inconsistencies without ever mentioning
17 such difficulty. Accordingly, the agency did not err in
18 declining to credit Lin’s explanations. See Majidi v.
19 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).
20 Lin also challenges the reliability of the credible
21 fear interview. Contrary to Lin’s argument, we do not
22 preclude reliance on these interviews; instead, we merely
4
1 require the agency to “closely examine each . . . interview
2 before concluding that it represents a sufficiently accurate
3 record of the alien’s statements . . . in determining
4 whether the alien is credible.” Ramsameachire v. Ashcroft,
5 357 F.3d 169, 179 (2d Cir. 2004); Ming Zhang v. Holder, 585
6 F.3d 715, 725 (2d Cir 2009). Here, Lin’s credible fear
7 interview was conducted nearly a month after his arrival
8 with the assistance of an interpreter. He was also
9 represented by counsel, but waived his presence at the
10 interview. Finally, the interview was memorialized in a
11 typewritten document providing the questions the asylum
12 officer asked and the answers Lin gave. Id. Because the
13 interview bears indicia of reliability, the IJ did not err
14 in relying on Lin’s statements at that interview when making
15 the adverse credibility determination.
16 Finally, the IJ reasonably found Lin’s friends’ and
17 relatives’ letters entitled to little weight because the
18 authors were interested witnesses not subject to
19 cross-examination. See Xiao Ji Chen v. U.S. Dep’t of
20 Justice, 471 F.3d 315, 342 (2d Cir. 2006). Lin argues that
21 the agency impermissibly conflated credibility and burden of
22 proof issues in considering his corroborating evidence.
5
1 This is incorrect. The agency merely found that, in light
2 of Lin’s incredible testimony, his corroborating evidence
3 was insufficient, standing alone, to carry his burden of
4 proof. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
5 Cir. 2007)(per curiam). In any event, the agency’s
6 inconsistency finding alone provides substantial evidence to
7 support its adverse credibility determination. See Xiu Xia
8 Lin, 534 F.3d at 163-64, 166 & n 3.
9 Accordingly, because all of Lin’s claims rely on his
10 credibility, the agency did not err in denying asylum,
11 withholding of removal, and CAT relief because those claims
12 were all based on the same factual predicate. Paul v.
13 Gonzales, 444 F.3d 148, 156-57 (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
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
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