Xuemin Lin v. Holder

10-1117-ag
Lin v. Holder
BIA
Hom, IJ
A098-457-025
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
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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
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 14th day of September, two thousand eleven.
PRESENT:
REENA RAGGI,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_______________________________________
XUEMIN LIN,
Petitioner,
v. 10-1117-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, BOARD OF IMMIGRATION
APPEALS,
Respondents.
______________________________________
FOR PETITIONER: Henry Zhang, Gregory Marotta (on the
brief), New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Douglas E. Ginsburg,
Assistant Director; Paul Fiorino,
Senior Litigation Counsel, Office of
Immigration Litigation; Civil
Division, U.S. Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Xuemin Lin, a native and citizen of the People’s
Republic of China, seeks review of June 5, 2007 and February
26, 2010 orders of the BIA affirming, in part, the December
8, 2005, decision of Immigration Judge (“IJ”) Sandy K. Hom
and affirming the March 19, 2008 decision of IJ Hom denying
Lin’s application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Xuemin Lin, No. A098 457 025 (B.I.A. June 5, 2007),
modifying No. A098 457 025 (Immig. Ct. N.Y. City Dec. 8,
2005); In re Xuemin Lin, No. A098 457 025 (B.I.A. Feb. 26,
2010), aff’g No. A098 457 025 (Immig. Ct. N.Y. City Mar. 19,
2008). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
Under the circumstances of this case, we review both
the BIA’s and the IJ’s decisions. See Yun-Zui Guan v.
Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
standards of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
(2d Cir. 2009).
Substantial evidence supports the IJ’s adverse
credibility determinations. In making his adverse
credibility determination, the IJ found Lin not credible
because he: (1) gave vague responses and hesitated
throughout the hearing; (2) testified inconsistently
regarding the location of his son’s birth; (3) failed to
explain sufficiently why the dates of issuance of his
children’s birth certificates did not match the date Lin
claimed he obtained them; (3) testified implausibly
regarding his sterilization certificate; (4) testified that
he had not seen a doctor in the United States and did not
explain how he had provided a letter from a doctor in Los
Angeles to establish that he had been sterilized; (5) failed
to provide sufficiently detailed testimony regarding his
Falun Gong claim; and (6) failed to provide reasonably
available corroborating evidence for either his family
planning or Falun Gong claim or to provide a reasonable
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explanation why such evidence was not available.* We will
not disturb adverse credibility determinations when, as
here, they are based on “specific examples in the record of
inconsistent statements . . . about matters material to [an
applicant’s] claim of persecution, or on contradictory
evidence or inherently improbable testimony regarding such
matters[.]” Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.
2004) (internal quotation marks omitted), overruled in part
on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice,
494 F.3d 296, 305 (2d Cir. 2007).
Contrary to Lin’s assertions, the record reveals that
he was provided an opportunity to explain these
inconsistencies and the absence of corroborating evidence,
such as a fine receipt, and either failed to provide a
reasonable explanation or admitted that he had not attempted
to obtain the pieces of corroborating evidence that the IJ
identified. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
Cir. 2005) (holding that the agency need not credit an
applicant’s explanations for inconsistent testimony unless
those explanations would compel a reasonable fact-finder to
do so); see also Biao Yang v. Gonzales, 496 F.3d 268, 273
(2d Cir. 2007) (“[T]he absence of corroboration in general
makes an applicant unable to rehabilitate testimony that has
already been called into question.”); Kyaw Zwar Tun v. INS,
445 F.3d 554, 563, 568 (2d Cir. 2006) (holding that the
agency’s determination that a particular piece of
corroborating evidence is available to the applicant (and
thus whether it should reasonably be expected to have been
produced) is a finding of fact to which this Court defers
under the substantial evidence standard).
These inconsistencies and evidentiary gaps that the IJ
relied upon went to the heart of Lin’s claim because they
were related to the birth of his children and to his alleged
persecution for practicing Falun Gong. See id. at 563.
(providing that an adverse credibility determination must be
based on “specific and cogent reasons” that “bear a
legitimate nexus” to the finding). Accordingly, substantial
*
Because the BIA accepted Lin’s explanation
regarding the inconsistent translation of whether his
daughter was born at “home,” we do not consider the IJ’s
findings on this issue.
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evidence supports the adverse credibility determination.
Moreover, contrary to Lin’s assertion that the agency was
required to address separately his CAT claim, because his
withholding of removal and CAT claims share the same factual
predicate as his asylum claim, the IJ’s adverse credibility
determination is also dispositive of those claims for
relief. See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir.
2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any pending motion
for a stay of removal in this petition is DISMISSED as moot.
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate
Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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