You Kun Lin v. Holder ( 2013 )

10-1617
Lin v. Holder
BIA
Videla, IJ
A094 798 132
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 12th day of September, two thousand thirteen.
PRESENT:
ROSEMARY S. POOLER,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
YOU KUN LIN, AKA LIN YOU KUN,
Petitioner,
v. 10-1617
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, UNITED STATES
DEPARTMENT OF HOMELAND SECURITY, BOARD
OF IMMIGRATION APPEALS,
Respondents.
______________________________________
FOR PETITIONER: You Kun Lin, pro se, New York, NY.
FOR RESPONDENTS: Tony West, Assistant Attorney
General; Shelley R. Goad, Assistant
Director; Katharine E. Clark, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
1 Petitioner You Kun Lin, a native and citizen of the
2 People’s Republic of China, seeks review of a March 29,
3 2010, decision of the BIA affirming the August 5, 2008,
4 decision of Immigration Judge (“IJ”) Gabriel C. Videla,
5 denying his application for asylum, withholding of removal,
6 and relief under the Convention Against Torture (“CAT”). In
7 re You Kun Lin, No. A094 798 132 (B.I.A. Mar. 29, 2010),
8 aff’g No. A094 798 132 (Immig. Ct. N.Y. City Aug. 5, 2008).
9 We assume the parties’ familiarity with the underlying facts
10 and procedural history in this case.
11 Under the circumstances of this case, we have reviewed
12 both the BIA’s and IJ’s opinions. See Zaman v. Mukasey, 514
13 F.3d 233, 237 (2d Cir. 2008). The applicable standards of
14 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
15 see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d
16 Cir. 2008). For asylum applications governed by the REAL ID
2
1 Act, such as the application in this case, the agency may,
2 considering the totality of the circumstances, base a
3 credibility finding on an asylum applicant’s demeanor, the
4 plausibility of his account, and inconsistencies in his
5 statements and other record evidence, without regard to
6 whether they go “to the heart of the applicant’s claim.”
7 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
8 64.
9 Substantial evidence supports the IJ’s adverse
10 credibility determination. In finding Lin not credible, the
11 IJ reasonably relied in part on the omission from both his
12 asylum application and his uncle’s letter that family
13 planning officials beat him on account of his resistance to
14 China’s family planning policy. Although, in summarizing
15 the IJ’s findings, the BIA appears to have misinterpreted
16 the IJ’s decision as indicating that Lin answered in the
17 “negative [a] . . . question in his asylum application (Form
18 I-589), as to whether he had ever been beaten or physically
19 mistreated by anyone in China,” it would be futile to remand
20 for the BIA to correct this erroneous interpretation of the
21 IJ’s omission finding. The IJ’s underlying finding did not
22 contain the same error, and we can confidently predict that
23 the BIA, after correcting its misstatement, would again
3
1 conclude that the IJ’s adverse credibility determination,
2 including his omission finding, was not clearly erroneous.
3 See Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir. 2008).
4 Furthermore, a reasonable fact finder would not be
5 compelled to credit Lin’s explanations for the omissions
6 from his asylum application and his uncle’s letter. See
7 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). The
8 IJ also did not err in noting that Lin had “incentive to
9 embellish his claim” to include the omitted physical
10 altercation with family planning officials because, after he
11 filed his asylum application, but before his merits hearing,
12 we issued our decision in Shi Liang Lin v. U.S. Dep’t of
13 Justice, 494 F.3d 296 (2d Cir. 2007), under which Lin was no
14 longer per se eligible for relief solely based on his wife’s
15 forced abortion.
16 Having questioned Lin’s credibility, the IJ reasonably
17 relied further on Lin’s failure to provide evidence
18 corroborating his claim that he suffered economic harm
19 rising to the level of persecution when family planning
20 officials purportedly closed his store. See Biao Yang v.
21 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). In addition,
22 contrary to Lin’s contention, the IJ was not required to
23 first identify the particular pieces of missing, relevant
4
1 evidence, and show that this evidence was reasonably
2 available before relying on a lack of corroboration to
3 support the adverse credibility finding. See Maladho Djehe
4 Diallo v. Gonzales, 445 F.3d 624, 633-34 (2d Cir. 2006).
5 Nevertheless, in this case, the IJ identified the missing
6 corroborating evidence and explained why it was reasonably
7 available. Accordingly, because substantial evidence
8 supports the IJ’s determination that Lin was not credible as
9 to his claims of past persecution, the agency did not err in
10 denying him asylum or withholding of removal to that extent.
11 Lin does not challenge in his brief the agency’s
12 determination that he failed to demonstrate his eligibility
13 for relief based on a well-founded fear of future
14 persecution or a likelihood of torture. However, even
15 liberally construing Lin’s pro se brief as raising such a
16 challenge, see Triestman v. Fed. Bureau of Prisons, 470 F.3d
17 471, 474 (2d Cir. 2006), we conclude that the agency did not
18 err in deeming speculative Lin’s claimed fear of forced
19 sterilization based on his desire to have more than one
20 child in the future. See Jian Xing Huang v. INS, 421 F.3d
21 125, 129 (2d Cir. 2005) (holding that “[i]n the absence of
22 solid support in the record for [an applicant’s] assertion
23 that he will be [persecuted], his fear is speculative at
5
1 best”); see also Jian Hui Shao v. Mukasey, 546 F.3d 138,
2 159-62 (2d Cir. 2008) (finding no error in the BIA’s
3 conclusion that evidence of country conditions did not
4 demonstrate that a petitioner from Fujian Province with two
5 children born in China had an objectively reasonably fear of
6 forced sterilization).
7 For the foregoing reasons, the petition for review is
8 DENIED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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