Hedi Lin v. Holder

12-1843
Lin v. Holder
BIA
Videla, IJ
A087 435 927
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 September, two thousand thirteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROSEMARY S. POOLER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12 HEDI LIN,
13 Petitioner,
14
15 v. 12-1843
16 NAC
17 ERIC H. HOLDER, JR., UNITED STATES
18 ATTORNEY GENERAL,
19 Respondent.
20 _____________________________________
21
22 FOR PETITIONER: Thomas V. Massucci, New York, N.Y.
23
24 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
25 Attorney General; Jennifer P.
26 Williams, Senior Litigation Counsel;
27 Lauren E. Fascett, Trial Attorney,
28 Office of Immigration Litigation,
29 United States Department of Justice,
30 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 Hedi Lin, a native and citizen of the
6 People’s Republic of China, seeks review of a April 4, 2012,
7 decision of the BIA affirming the April 14, 2010, decision
8 of Immigration Judge (“IJ”) Gabriel C. Videla, which
9 pretermitted his application for asylum and denied his
10 application for withholding of removal and relief under the
11 Convention Against Torture (“CAT”). In re Hedi Lin, No.
12 A087 435 927 (B.I.A. Apr. 4, 2012), aff’g A087 435 927
13 (Immig. Ct. N.Y. City Apr. 14, 2010). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 Under the circumstances of this case, we review the
17 decision of the IJ as supplemented by the BIA. See Yan Chen
18 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
19 applicable standards of review are well-established. See
20 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
21 562 F.3d 510, 513 (2d Cir. 2009). Because Lin does not
22 challenge the IJ’s pretermission of his asylum application
2
1 as untimely, or the denial of CAT relief, we consider only
2 withholding of removal.
3 For applications such as Lin’s, governed by the REAL ID
4 Act of 2005, the agency may, considering the totality of the
5 circumstances, base a credibility finding on the applicant’s
6 “demeanor, candor, or responsiveness,” the plausibility of
7 her account, and inconsistencies in her statements, without
8 regard to whether they go “to the heart of the applicant’s
9 claim.” See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);
10 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
11 We will “defer to an IJ’s credibility determination unless,
12 from the totality of the circumstances, it is plain that no
13 reasonable fact-finder could make” such a ruling. Xiu Xia
14 Lin, 534 F.3d at 167. Here, the IJ’s adverse credibility
15 determination is supported by substantial evidence.
16 The IJ reasonably based her credibility finding on
17 Lin’s inconsistent and implausible testimony and
18 inconsistencies between his testimony and his documentary
19 evidence. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),
20 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167. Indeed, the
21 record reflects that: (1) Lin’s testimony that the
22 underground church he attended was called Lianjiang County
3
1 Christian Church, had a cross featured on its doors and a
2 sign with its name, and, because it was illegal, it operated
3 in secret to avoid interference by authorities was both
4 implausible and contrary to his later testimony that the
5 church actually was government-sanctioned with a government
6 appointed pastor; (2) Lin changed his testimony three times
7 regarding where he was baptized, stating first that he was
8 baptized at an unnamed meeting place in a church member’s
9 home, then Lianjiang County Church, then Lianjiang County
10 Hospital, and finally reasserting that he was baptized in a
11 basement in a church member’s home; and (3) Lin’s testimony
12 that he was not baptized in Lianjing County Church was
13 contrary to the baptismal certificate he presented from that
14 church.
15 The IJ was not required to credit Lin’s explanations
16 for these inconsistencies. See Majidi v. Gonzales, 430 F.3d
17 77, 80-81 (2d Cir. 2005) (providing that the agency need not
18 credit an applicant’s explanations for inconsistent
19 testimony unless those explanations would compel a
20 reasonable fact-finder to do so). Moreover, because the
21 IJ’s assessment of Lin’s demeanor as vague and non-
22 responsive is supported by these “specific examples of
4
1 inconsistent testimony,” we defer to that finding. Li Hua
2 Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.
3 2006). Likewise, because the IJ’s implausibility finding is
4 “tethered to the evidentiary record,” based on Lin’s
5 description of his underground church as having visible
6 decoration and identifying signage, we will not disturb that
7 finding. Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir.
8 2007).
9 The IJ also reasonably relied on the lack of reliable
10 corroborating evidence, particularly the absence of an
11 affidavit from his wife, who had allegedly attended church
12 with Lin in the United States. “An applicant’s failure to
13 corroborate his or her testimony [with evidence reasonably
14 available to the applicant] may bear on credibility, because
15 the absence of corroboration in general makes an applicant
16 unable to rehabilitate testimony that has already been
17 called into question.” Biao Yang v. Gonzales, 496 F.3d 268,
18 273 (2d Cir. 2007). Even though Lin’s wife may have lacked
19 a lawful immigration status and feared removal if she
20 appeared in Court, that fear does not make her testimony
21 unavailable because his wife would have only benefitted from
22 her testimony because she would obtain derivative asylee
23 status if her husband was granted asylum. See Yan Juan Chen
5
1 v. Holder, 658 F.3d 246, 253 (2d Cir. 2011). Additionally,
2 Lin did not explain why his wife could not have submitted an
3 affidavit, which would not have required her to appear in
4 Court.
5 The IJ also reasonably afforded minimal weight to the
6 only corroborating documentary evidence Lin submitted,
7 because: (1) the author of one letter, Chih Pin Charles Tu,
8 did not know Lin; (2) the letters from his fellow
9 practitioners were from interested parties who were not
10 subject to cross-examination; and (3) the baptismal
11 certificate was not signed, Lin could not identify who had
12 completed the certificate, and the certificate stated that
13 he was baptized in Lianjiang Country Christian Church,
14 contrary to his testimony that he was baptized in a house
15 church. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
16 315, 342 (2d Cir. 2006) (noting that the weight to be
17 afforded to the applicant’s evidence in immigration
18 proceedings lies largely within the discretion of the IJ).
19 With regard to a letter from Pastor Tsung-Shih Fred
20 Hsu, the BIA noted that the IJ did not thoroughly explain
21 her bases for affording the letter minimal weight, but
22 nevertheless found no error because, based on Lin’s
23 “contradictory testimony as to whether he in fact asked
6
1 Pastor Hsu to appear as a witness on his behalf,” the letter
2 was not entitled to full weight.
3 Given Lin’s inconsistent testimony, adverse demeanor,
4 and failure to corroborate his claim, the totality of the
5 circumstances supports the agency’s adverse credibility
6 determination. See Xiu Xia Lin, 534 F.3d at 167; Yanqin
7 Weng, 562 F.3d at 513. Accordingly, the IJ did not err in
8 denying withholding of removal. See 8 U.S.C.
9 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, Lin’s pending
12 motion for a stay of removal in this petition is DISMISSED
13 as moot.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
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