Cheng Jin v. Holder

12-24
Jin v. Holder
BIA
Balasquide, IJ
A089 908 374
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 13th day of September, two thousand thirteen.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 CHENG JIN,
14 Petitioner,
15
16 v. 12-24
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Carl H. McIntyre,
28 Jr., Assistant Director; Christina
29 J. Martin, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Cheng Jin, a native and citizen of the People’s
10 Republic of China, seeks review of a December 21, 2011
11 decision of the BIA affirming the March 15, 2010 decision of
12 an Immigration Judge (“IJ”), which denied his application
13 for asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Cheng Jin, No.
15 A089 908 374 (B.I.A. Dec. 21, 2011), aff’g No. A089 908 374
16 (Immig. Ct. N.Y. City Mar. 15, 2010). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 We have reviewed the IJ’s decision as supplemented by
20 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
21 Cir. 2005). The applicable standards of review are well
22 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
23 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). For
24 asylum applications such as Jin’s, which are governed by the
2
1 amendments to the Immigration and Nationality Act made by
2 the REAL ID Act of 2005, the agency “may rely on any
3 inconsistency or omission in making an adverse credibility
4 determination as long as the ‘totality of the circumstances’
5 establishes that an asylum applicant is not credible.” Xiu
6 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per
7 curiam) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). We find
8 that the agency’s adverse credibility finding is supported
9 by substantial evidence.
10 The agency determined that Jin’s testimony was
11 incredible because he testified that he was beaten and
12 detained for assisting a woman who was fleeing from military
13 officers, but his asylum applications omitted those material
14 facts. Jin argues that the agency erred in finding him
15 incredible based on those omissions because “he never
16 attempted to establish past persecution.” However, Jin
17 explicitly alleged past persecution by testifying that he
18 “suffered [the Chinese government’s] persecution” for
19 “expos[ing] the[ir] corruption.” Moreover, contrary to his
20 contention, the agency reasonably relied on Jin’s omissions
21 in finding him incredible because they go to the heart of
22 his fear of future persecution. Xiu Xia Lin, 534 F.3d at23 167.
3
1 Jin also contends that his explanation for the
2 omissions – he thought the incident was unimportant given
3 his family’s history of more severe persecution – was
4 improperly rejected by the agency. However, Jin’s
5 explanations were insufficient to compel a reasonable
6 adjudicator to credit his testimony because the agency
7 reasonably could have expected him to include an account of
8 his past harm in his applications precisely because of that
9 history. See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir.
10 2007); see also Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
11 Cir. 2005).
12 Jin further contends that the agency improperly based
13 its adverse credibility finding on non-dramatic
14 inconsistencies without putting him on notice of them and
15 giving him an opportunity to reconcile his testimony. Jin’s
16 argument is misplaced, however, because during his hearing,
17 he was provided an opportunity to explain the omissions and
18 the IJ was under no obligation to allow him to explain the
19 inconsistencies between his asylum applications and his
20 testimony because they were material and obvious. Majidi,
21 430 F.3d at 81.
22
4
1 Finally, because the submission was untimely, the IJ
2 was not required to admit the letter he proffered from a
3 friend in China with regard to the awareness of the Chinese
4 government of Jin’s political activities in the United
5 States. See U.S. Department of Justice, Executive Office
6 for Immigration Review, Immigration Court Practice Manual,
7 Chapter 3.1(d)(ii); see also Dedji v. Mukasey, 525 F.3d 187,
8 191 (2d Cir.2008).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, the pending motion
11 for a stay of removal in this petition is DISMISSED as moot.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
5