De Jin v. Lynch

14-906
Jin v. Lynch
BIA
Poczter, IJ
A200 182 642
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 1st day of May, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 DE JIN,
14 Petitioner,
15
16 v. 14-906
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.1
22 _____________________________________
23
24 FOR PETITIONER: Troy Nader Moslemi, Flushing, New
25 York.
26
1 - Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Loretta E. Lynch is automatically substituted for former Attorney General Eric
H. Holder, Jr.
1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
2 Attorney General; Shelley R. Goad,
3 Assistant Director; Monica Antoun,
4 Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review is
12 DENIED.
13 Petitioner De Jin, a native and citizen of China, seeks
14 review of a February 28, 2014 decision of the BIA affirming a
15 July 6, 2012, decision of an Immigration Judge (“IJ”) denying
16 his application for asylum, withholding of removal, and relief
17 under the Convention Against Torture (“CAT”). In re De Jin,
18 No. A200 182 642 (B.I.A. Feb. 28, 2014), aff’g No. A200 182 642
19 (Immig. Ct. N.Y. City Jul. 6, 2012). We assume the parties’
20 familiarity with the underlying facts and procedural history
21 in this case.
22 We have reviewed the IJ’s decision “as modified by” the BIA,
23 i.e., minus the determination that Jin’s asylum application was
24 untimely filed. Xue Hong Yang v. U.S. Dep’t of Justice, 426
25 F.3d 520, 522 (2d Cir. 2005). The BIA did not err in bypassing
2
1 the timeliness issue and instead considering the merits of Jin’s
2 claims. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a
3 general rule courts and agencies are not required to make
4 findings on issues the decision of which is unnecessary to the
5 results they reach.”). Accordingly, we address only the
6 adverse credibility determination and review it for substantial
7 evidence. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d
8 Cir. 2008); 8 U.S.C. § 1252(b)(4)(B).
9 For asylum applications, like Jin’s, governed by the REAL
10 ID Act, the agency may, “[c]onsidering the totality of the
11 circumstances,” base a credibility finding on inconsistencies
12 and omissions in an applicant’s statements and other record
13 evidence “without regard to whether” they go “to the heart of
14 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
15 Xia Lin, 534 F.3d at 163-64, 167. The agency’s decision is
16 supported by substantial evidence given the inconsistencies and
17 omissions in the record regarding the circumstances that led
18 to Jin’s alleged arrest for practicing Falun Gong and the
19 interrogations he allegedly experienced after his release.
20 An omission, like an inconsistency, is a proper ground for
21 an adverse credibility determination. Xiu Xia Lin, 534 F.3d
3
1 at 166, n.3. The fact that Jin’s asylum application and his
2 mother’s letters omitted any allegation that his mother
3 witnessed his and his uncle’s arrests, or that his mother had
4 received telephone calls from the police asking Jin to report
5 to two interrogations after his release, undermined Jin’s
6 credibility. Id. at 166-67. The IJ did not err in relying on
7 these omissions, particularly as Jin did not provide compelling
8 explanations, stating only that his mother may have forgotten
9 or that he could not explain. See Majidi v. Gonzales, 430 F.3d
10 77, 80-81 (2d Cir. 2005).
11 The IJ’s reliance on these omissions is further bolstered
12 by the fact that Jin himself omitted the same facts from his
13 application. His application did not mention that his mother
14 witnessed his arrest or that the police interrogated him twice
15 after he was released from detention. Nor did he provide a
16 convincing explanation for these omissions. Id. His
17 explanation—that he did not think to include the details—is
18 unconvincing given the significance of the two post-detention
19 interrogations; the encounters with police were part of the
20 basis of his application and the only evidence to support a fear
21 of future harm.
4
1 Finally, we find no basis to overturn the agency’s finding
2 that Jin gave inconsistent accounts of the injury that led him
3 to practice Falun Gong. Jin testified he was diagnosed with
4 a waist sprain, but his application identified the injury as
5 a “back strain” and referenced both back and waist pain.
6 Although minor, this inconsistency is apparent in the record
7 and we cannot find that a reasonable fact-finder would be
8 compelled to conclude to the contrary. 8 U.S.C.
9 § 1252(b)(4)(B). The agency was not required to credit Jin’s
10 non-responsive explanation for the inconsistency. Majidi, 430
11 F.3d at 80-81.
12 Given the inconsistencies and omissions relating to Jin’s
13 claims of arrest, post-release interrogations, and the nature
14 of the injury that led Jin to Falun Gong, the “totality of the
15 circumstances” supports the agency’s adverse credibility
16 determination. See Xiu Xia Lin, 534 F.3d at 167. As all of
17 Jin’s claims share the same factual predicate, the adverse
18 credibility determination is dispositive of asylum,
19 withholding of removal, and CAT relief. See Paul v. Gonzales,
20 444 F.3d 148, 155-57 (2d Cir. 2006).
21
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O=Hagan Wolfe, Clerk
6