Hong Hui Lin v. Lynch

15-2327
Lin v. Lynch
BIA
Christensen, IJ
A87 791 509
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 8th day of August, two thousand sixteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 HONG HUI LIN,
14 Petitioner,
15
16 v. 15-2327
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Troy N. Moslemi, Flushing, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Song
27 Park, Senior Litigation Counsel;
28 Kimberly A. Burdge, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 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 is
4 DENIED.
5 Petitioner Hong Hui Lin, a native and citizen of the
6 People’s Republic of China, seeks review of a June 29, 2015,
7 decision of the BIA, affirming a January 22, 2014, decision of
8 an Immigration Judge (“IJ”) denying Lin’s application for
9 asylum, withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Hong Hui Lin, No. A87 791 509
11 (B.I.A. June 29, 2015), aff’g No. A87 791 509 (Immig. Ct. N.Y.
12 City Jan. 22, 2014). We assume the parties’ familiarity with
13 the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we review the IJ’s
15 decision as modified by the BIA. Xue Hong Yang v. U.S. Dep’t
16 of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
17 standards of review are well established. 8 U.S.C.
18 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
19 (2d Cir. 2008).
20 For asylum applications like Lin’s, governed by the REAL
21 ID Act, the agency may, “[c]onsidering the totality of the
2
1 circumstances,” base a credibility finding on an asylum
2 applicant’s “demeanor, candor, or responsiveness,” the
3 plausibility of his account, and inconsistencies in his
4 statements, “without regard to whether” they go “to the heart
5 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu
6 Xia Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s
7 credibility determination unless, from the totality of the
8 circumstances, it is plain that no reasonable fact-finder could
9 make such an adverse credibility ruling.” Id. at 167. As
10 discussed below, substantial evidence supports the agency’s
11 adverse credibility determination.
12 The agency reasonably relied on the inconsistencies
13 concerning the circumstances under which Lin and his first
14 witness last saw each other in China. Lin testified that he
15 met the witness for a 2:00 pm meal, which lasted two hours. Lin
16 was then confronted with his plane ticket for an 8:00 flight
17 to Shanghai that same day. After a long pause, Lin responded
18 that his flight was scheduled for 8:00 am, but that it was
19 delayed until 4:00 pm. The witness testified, however, that
20 he met Lin at 5:00 pm when it was dark. The agency reasonably
21 found Lin’s explanation both inconsistent with his own
3
1 testimony and implausible because Lin had previously testified
2 that he took the day of work and went grocery shopping on the
3 day he met the witness. See Majidi v. Gonzales, 430 F.3d 77,
4 80 (2d Cir. 2005) (“A petitioner must do more than offer a
5 plausible explanation for his inconsistent statements to secure
6 relief; he must demonstrate that a reasonable fact-finder would
7 be compelled to credit his testimony.” (internal quotation
8 marks and emphasis omitted)).
9 The agency also reasonably rested its adverse credibility
10 determination on inconsistencies between Lin and his second
11 witness’s testimony concerning Lin’s church attendance in the
12 United States. Xiu Xia Lin, 534 F.3d at 166-67. Lin testified
13 that, on the day before the hearing, he attended a 10:45 am
14 church service until 12:30 pm and that he saw the witness after
15 the service. But the witness testified that she attended a
16 12:00 pm church service, saw Lin when she first walked in, and
17 that she left in the middle of the service at 1:00 pm.
18 Lin argues that the inconsistencies concerning his
19 U.S.-church attendance were minor and he should have been
20 confronted with them and given an opportunity to explain. We
21 have held that “where the perceived incongruities in an asylum
4
1 applicant’s testimony are not plainly obvious, an IJ cannot rely
2 on them to support an adverse credibility ruling without first
3 identifying the alleged inconsistencies for the applicant and
4 giving the applicant an opportunity to address them.” Ming Shi
5 Xue v. BIA, 439 F.3d 111, 121 (2d Cir. 2006). Although Lin may
6 be correct that certain inconsistencies concerning when he and
7 the witness first met were “not plainly obvious,” the
8 inconsistences concerning the church service, which supposedly
9 occurred the day before the hearing, were: Lin and Jin testified
10 that the service was at different times and that they saw each
11 other at different places. The agency therefore did not err
12 in relying on the inconsistences about Lin’s attendance at the
13 church service. Ming Shi Xue, 439 F.3d at 125.
14 The agency also did not err in concluding that Lin’s
15 corroborating evidence was insufficient to rehabilitate his
16 credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
17 Cir. 2007) (observing that an applicant’s failure to
18 corroborate testimony may bear on credibility, either because
19 the absence of particular evidence is viewed as suspicious, or
20 because the absence of corroboration in general makes an
21 applicant unable to rehabilitate testimony already called into
5
1 question). The agency reasonably accorded Lin’s documents
2 from China limited weight because Lin testified that his mother
3 in Fujian Province sent them but the envelope reflected that
4 the documents were sent from Shen Zhen Province by a man that
5 Lin purportedly did not know. See Xiao Ji Chen v. U.S. Dep’t
6 of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that the
7 weight accorded to evidence lies largely within the agency’s
8 discretion). The agency also reasonably gave diminished
9 weight to the letters from Lin’s mother, friend, and church
10 official in China because they were unsworn, were prepared for
11 the purpose of litigation, and were from interested parties not
12 subject to cross examination. See Matter of H-L-H- & Z-Y- Z-,
13 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (agency can give little
14 weight to document drafted by interested witness not subject
15 to cross examination), rev’d on other grounds by Hui Lin Huang
16 v. Holder, 677 F.3d 130 (2d Cir. 2012).
17 Given the inconsistencies and the agency’s reasonable
18 treatment of Lin’s corroborating evidence, the totality of the
19 circumstances supports the credibility ruling. Xiu Xia Lin,
20 534 F.3d at 167. Because Lin’s claims for relief were based
21 on the same factual predicate, the adverse credibility
6
1 determination is dispositive of asylum, withholding of removal,
2 and CAT relief. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
3 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is VACATED,
7 and any pending motion for a stay of removal in this petition
8 is DISMISSED as moot. Any pending request for oral argument
9 in this petition is DENIED in accordance with Federal Rule of
10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
11 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
7