Guang Lin v. Holder

11-251-ag
Lin v. Holder
BIA
Elstein, IJ
A094 923 470
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 6th day of April, two thousand twelve.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT D. SACK,
9 REENA RAGGI,
10 Circuit Judges.
11 _______________________________________
12
13 Guang Lin, AKA Guang Ren Lin,
14 Petitioner,
15
16 v. 11-251-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Richard Tarzia, Belle Mead, New
24 Jersey.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Nancy E. Friedman, Senior
28 Litigation Counsel; Brooke M.
29 Maurer, 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 Guang Lin, a native and citizen of China, seeks review
10 of a December 27, 2010, decision of the BIA affirming the
11 February 25, 2009, decision of Immigration Judge (“IJ”),
12 Annette S. Elstein, which denied his application for asylum
13 and withholding of removal. In re Guang Lin a.k.a. Guang
14 Ren Lin, No. A094 923 470 (B.I.A. Dec. 27, 2010), aff’g No.
15 A094 923 470 (Immig. Ct. N.Y. City Feb. 25, 2009). We
16 assume the parties’ familiarity with the underlying facts
17 and procedural history of this case.
18 We have reviewed the decision of the IJ as supplemented
19 by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
20 Cir. 2005). The applicable standards of review are well-
21 established. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic
22 v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).
23 For asylum applications, such as this one, governed by
24 the amendments made to the Immigration and Nationality Act
2
1 by the REAL ID Act of 2005, the agency may, considering the
2 totality of the circumstances, base a credibility finding on
3 an asylum applicant’s “demeanor, candor, or responsiveness,”
4 the plausibility of his or her account, and inconsistencies
5 in his or her statements, without regard to whether they go
6 “to the heart of the applicant’s claim.” See 8 U.S.C.
7 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
8 167 (2d Cir. 2008). We will “defer to an IJ’s credibility
9 determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
12 In this case, the IJ reasonably based her adverse
13 credibility determination on inconsistencies between Lin’s
14 hearing testimony, his asylum application, and his wife’s
15 affidavit, and on lack of detail in his hearing testimony.
16 At the hearing, Lin testified that he had physically
17 struggled with Chinese government officials when they came
18 to take his wife to be forcibly sterilized, and that
19 officials made yearly visits to his home to order his family
20 to pay the outstanding balance on a fine that the family had
21 incurred for violating China’s family planning policy.
22
3
1 As the IJ correctly noted, however, Lin never made
2 either of those assertions in his asylum application, and
3 they are likewise not mentioned in his wife’s affidavit.
4 Lin additionally testified that the smugglers who had helped
5 him enter the United States would pose a danger to his life
6 and the lives of his family members if he were returned to
7 China while still in debt to the smugglers, but, as the IJ
8 correctly noted, he mentioned no specific threat.
9 Furthermore, although Lin testified that his salary would
10 not be enough to enable him to pay his family planning fine
11 and smuggling debt if he were returned to China, the IJ
12 correctly noted that, in 2002, he made a substantial payment
13 towards his family planning fine that opens to serious
14 question his alleged inability to pay.
15 These inconsistencies and lack of detail, on which the
16 IJ relied, were proper grounds for his adverse credibility
17 finding. See 8 U.S.C. § 1158(b)(1)(B)(iii). As the only
18 evidence of a threat to Lin’s life or freedom depended upon
19 his credibility, the adverse credibility determination
20 necessarily precludes success on the claim for withholding
21 of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
22 Cir. 2006).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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