Sun Min Lin v. Holder

12-4854
Lin v. Holder
BIA
Poczter , IJ
A200 930 282
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 23rd day of December, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 SUN MIN LIN,
14 Petitioner,
15
16 v. 12-4854
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Troy Nader Moslemi, New York, N.Y.
24
25 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
26 Assistant Attorney General; Derek C.
27 Julius, Senior Litigation Counsel;
28 Nicole R. Prairie, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 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 Petitioner Sun Min Lin, a native and citizen of the
6 People’s Republic of China, seeks review of a November 28,
7 2012, decision of the BIA affirming the June 30, 2011,
8 decision of Immigration Judge (“IJ”) Aviva L. Poczter, which
9 denied his application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Sun Min Lin, No. A200 930 282 (B.I.A. Nov. 28, 2012),
12 aff’g No. A200 930 282 (Immig. Ct. N.Y. City June 30, 2011).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Where the BIA has affirmed the decision of the IJ, we
16 review the entirety of the IJ’s decision, including portions
17 not explicitly discussed by the BIA. See Guan v. Gonzales,
18 432 F.3d 391, 394 (2d Cir. 2005). The agency’s findings of
19 fact will be affirmed if they are supported by substantial
20 evidence, and may be overturned only if “any reasonable
21 adjudicator would be compelled to conclude to the contrary.”
22 8 U.S.C. § 1252(b)(4)(B); see also Singh v. Mukasey, 553
23 F.3d 207, 212 (2d Cir. 2009).
2
1 Because this application is governed by the REAL ID Act
2 of 2005, the agency may, “[c]onsidering the totality of the
3 circumstances,” base a credibility finding on the
4 applicant’s “demeanor, candor, or responsiveness,” 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 see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
9 2008). We “defer therefore to an IJ’s credibility
10 determination unless, from the totality of the
11 circumstances, it is plain that no reasonable fact-finder
12 could make such an adverse credibility ruling.” Xiu Xia
13 Lin, 534 F.3d at 167.
14 Here, the IJ reasonably based her adverse credibility
15 determination on Lin’s inconsistent and implausible
16 testimony, an omission from his asylum application,
17 inconsistencies between Lin’s testimony and his witness’s
18 testimony, and inconsistencies between Lin’s testimony and
19 documentary evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii);
20 Xiu Xia Lin, 534 F.3d at 167. Among other things, (1) Lin
21 testified that he hid at a friend’s house in China for six
22 months, but admitted on cross-examination that he spent one
23 month in Cuba during that time; (2) Lin did not list his
3
1 month-long Cuban residence in his asylum application; (3)
2 Lin confused dates when confronted with these
3 inconsistencies; and (4) Lin testified that he traveled to
4 attend a friend’s wedding in China during the same period he
5 was hiding from the Chinese police.
6 The IJ was not required to credit Lin’s explanations
7 for these testimonial defects. See Majidi v. Gonzales, 430
8 F.3d 77, 80-81 (2d Cir. 2005) (providing that the agency
9 need not credit an applicant’s explanations for inconsistent
10 testimony unless a reasonable fact-finder would be compelled
11 to do so). Moreover, the IJ based his implausibility
12 finding in part on inconsistencies between Lin’s claim he
13 feared persecution and his admitted behavior while still in
14 China, thus “tethering [the credibility finding] to the
15 evidentiary record,” Siewe v. Gonzales, 480 F.3d 160, 168-
16 69 (2d Cir. 2007). Furthermore, we defer to the IJ’s
17 assessment of Lin’s demeanor as non-responsive because it
18 was supported by “specific examples of inconsistent
19 testimony.” Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109
20 (2d Cir. 2006). Finally, the IJ reasonably relied on the
21 lack of reasonably available corroborating evidence
22 regarding Lin’s efforts to flee China and enter the United
23 States. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
24 Cir. 2007).
4
1 Because the adverse credibility determination is
2 supported by substantial evidence, the IJ did not err in
3 denying asylum. As Lin’s claims for withholding of removal
4 and CAT relief are based on the same factual predicate, the
5 adverse credibility determination necessarily precludes
6 success on those claims. See Paul v. Gonzales, 444 F.3d
7 148, 156 (2d Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, Lin’s pending
10 motion for a stay of removal is DENIED as moot.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
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