Yun Ming Lin v. Holder

08-6099-ag
Lin v. Holder
BIA
Bukszpan, IJ
A 097 658 304
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 11 th day of December, two thousand nine.
5
6 PRESENT:
7 ROBERT D. SACK,
8 BARRINGTON D. PARKER,
9 REENA RAGGI,
10 Circuit Judges.
11 _______________________________________
12
13 YUN MING LIN,
14 Petitioner,
15
16 v. 08-6099-ag
17 NAC
18 ERIC H. HOLDER, JR., 1 ATTORNEY GENERAL,
19 UNITED STATES DEPARTMENT OF JUSTICE,
20 Respondent.
21 ______________________________________
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Acting Attorney
General Mark R. Filip as respondent in this case.
1 FOR PETITIONER: Lewis Hu, New York, NY.
2
3 FOR RESPONDENT: Tony West, Assistant Attorney
4 General, Stephen J. Flynn, Assistant
5 Director, Jeffrey R. Meyer,
6 Attorney, Office of Immigration
7 Litigation, Civil Division, United
8 States Department of Justice,
9 Washington, DC.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review
14 is DENIED.
15 Petitioner Yun Ming Lin, a native and citizen of China,
16 seeks review of the November 17, 2008 order of the BIA
17 affirming the February 15, 2007 decision of Immigration
18 Judge (“IJ”) Joanna Miller Bukszpan denying his application
19 for asylum, withholding of removal, and relief under the
20 Convention Against Torture (“CAT”). In re Yun Ming Lin, No.
21 A 097 658 304 (B.I.A. Nov. 17, 2008), aff’g No. A 097 658
22 304 (Immig. Ct. N.Y. City Feb. 15, 2007). We assume the
23 parties’ familiarity with the underlying facts and
24 procedural history of this case.
25 When the BIA adopts the decision of the IJ and
26 supplements the IJ’s decision, this Court reviews the
27 decision of the IJ as supplemented by the BIA. See Yan Chen
28 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review
2
1 the agency’s factual findings, including adverse credibility
2 determinations, under the substantial evidence standard.
3 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519
4 F.3d 90, 95 (2d Cir. 2008). We review de novo questions of
5 law and the application of law to undisputed fact.
6 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
7 Lin argues in his brief that the IJ engaged in
8 “improper speculation and conjecture” by failing to give
9 “specific, cogent reasons” for her adverse credibility
10 determination. Contrary to Lin’s argument, the IJ based her
11 adverse credibility determination on Lin’s “highly
12 implausible” testimony. Specifically, the IJ found
13 implausible Lin’s testimony that: (1) he did not practice
14 Falun Gong because he was too busy with school and work, but
15 still had time to pass out flyers and encourage others to
16 practice Falun Gong, even though it was illegal to do so;
17 and (2) he participated in a Falun Gong demonstration in New
18 York but did not know where the demonstration was held. In
19 making a finding that an applicant’s testimony is inherently
20 implausible, an IJ is not required to “explain in precise
21 detail what made each identified act implausible.” See
22 Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007).
3
1 Rather, where “the reasons for [the IJ’s] incredulity are
2 evident,” the implausibility finding is supported by
3 substantial evidence. Id. Because the IJ provided cogent
4 reasons for her implausibility finding, she met this
5 standard. We have upheld similar implausibility findings.
6 See, e.g., Ying Li v. Bureau of Citizenship and Immigration
7 Servs., 529 F.3d 79, 82-83 (2d Cir. 2008).
8 Because substantial evidence supports the IJ’s adverse
9 credibility determination, the IJ properly denied Lin’s
10 application for asylum, withholding of removal, and CAT
11 relief. The persuasiveness of the only evidence that Lin
12 would be persecuted or tortured depended on his credibility.
13 See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534
14 F.3d 162, 167 (2d Cir. 2008); Paul v. Gonzales, 444 F.3d
15 148, 156 (2d Cir. 2006).
16 For the foregoing reasons, the petition for review is
17 DENIED. Having completed our review, we DISMISS the
18 petitioner's pending motion for a stay of removal as moot.
19
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
23
24 By:___________________________
4