Bi Yun Lin v. Holder

10-3680-ag BIA
Lin v. Holder Abrams, IJ
A094 924 136
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 30th day of September, two thousand eleven.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 BI YUN LIN,
14 Petitioner,
15
16 v. 10-3680-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22 FOR PETITIONER: Farah Loftus, Century City,
23 California
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Lyle D. Jentzer, Senior
27 Litigation Counsel; John M. McAdams,
28 Jr., Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, 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 Bi Yun Lin, a native and citizen of China, seeks review
6 of an August 27, 2010, decision of the BIA affirming the
7 October 3, 2008, decision of Immigration Judge (“IJ”) Steven
8 R. Abrams, which denied her application for asylum,
9 withholding of removal and relief under the Convention
10 Against Torture (“CAT”). In re Bi Yun Lin, No. A094 924 136
11 (B.I.A. Aug. 27, 2010), aff’g No. A094 924 136 (Immig. Ct.
12 N.Y. City Oct. 3, 2008). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this
14 case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well established. See 8
19 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
20 F.3d 510, 513 (2d Cir. 2009).
21 As an initial matter, because Lin failed to challenge
22 the IJ’s denial of withholding of removal and CAT relief in
23 her appeal to the BIA, we lack jurisdiction to consider her
24 challenge to the denial of that relief. 8 U.S.C.
2
1 § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.
2 2006) (citing Beharry v. Ashcroft, 329 F.3d 51, 59 (2d Cir.
3 2003)). We similarly decline to consider the issue of Lin’s
4 fear of persecution in the form of forced abortion or
5 sterilization as she did not raise that issue before the
6 BIA. See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004)
7 (holding that “generalized protestations” do not suffice to
8 alert the court to the “discrete issue” necessary to
9 properly exhaust a claim at the agency level).
10 Accordingly, the only issue before us is whether the
11 BIA erred in denying Lin’s application for asylum premised
12 upon her past persecution and fear of future persecution
13 based on her religion .
14 For asylum applications governed by the amendments made
15 to the Immigration and Nationality Act by the REAL ID Act of
16 2005, the BIA considers the totality of the circumstances
17 and may base a credibility finding on an asylum applicant’s
18 “demeanor, candor, or responsiveness,” the plausibility of
19 her account, and inconsistencies in her statements, without
20 regard to whether they go “to the heart of the applicant’s
21 claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v.
22 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). We will “defer
23 therefore to an IJ’s credibility determination unless, from
24 the totality of the circumstances, it is plain that no
3
1 reasonable fact-finder could make” such a ruling. Xiu Xia
2 Lin, 534 F.3d at 167.
3 In this case, the IJ reasonably based his adverse
4 credibility determination on Lin’s testimony, her husband’s
5 testimony, and two letters purportedly from a relative of
6 hers in China and her pastor in the United States. Liu’s
7 testimony was internally inconsistent and implausible.
8 First, she testified that her father’s second cousin had not
9 been present at a church meeting that was broken up by
10 police officers, but she submitted a letter in which that
11 individual stated he had been present at that meeting. When
12 confronted with the inconsistency, Lin claimed she had
13 forgotten this detail. Second, her testimony about her most
14 recent attendance at church prior to the hearing was
15 inconsistent with her husband’s testimony when he was asked
16 about the same event. Lin’s counsel was given the
17 opportunity to clarify this discrepancy but failed to do so.
18 Third, she testified that she was stopped by a police
19 officer who did not know her name, but that an officer who
20 telephoned her home one month later asked for her by name.
21 She failed to explain how the police learned her identity.
22 Fourth, Lin presented a letter from the pastor of her church
23 in Brooklyn that indicated that she had been attending the
24 church since 2002. The agency reasonably found this
4
1 evidence implausible because Lin claimed to have arrived in
2 the United States in 2007.
3 The IJ properly relied on the cumulative effect of
4 these inconsistencies and implausibilities in finding Lin
5 not credible. See Liang Chen v. U.S. Att’y Gen., 454 F.3d
6 103, 106-07 (2d Cir. 2006) (“[T]he IJ may rely upon the
7 cumulative impact of . . . inconsistencies, and may conduct
8 an overall evaluation of testimony in light of its
9 rationality or internal consistency and the manner in which
10 it hangs together with other evidence”) (citations and
11 quotation marks omitted). Moreover, the IJ provided Lin
12 with multiple opportunities to explain these
13 inconsistencies, but she failed to do so. See Ming Shi Xue
14 v. BIA, 439 F.3d 111, 125 (2d Cir. 2006) (the agency may not
15 rest an adverse credibility finding on a non-dramatic
16 inconsistency without first putting the applicant on notice
17 and giving the applicant a chance to reconcile the
18 testimony). The totality of the circumstances supports the
19 BIA’s adverse credibility determination, and we defer to
20 that finding. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
21 Lin, 534 F.3d at 167.
22 The BIA’s adverse credibility finding also undermines
23 Lin’s claim of future persecution. Because she has not
24 provided any basis--other than her testimony regarding past
5
1 persecution, which the agency reasonably deemed incredible--
2 to show that the Chinese government would persecute her, she
3 failed to demonstrate an independent basis for a well-
4 founded fear of persecution. Cf. Paul v. Gonzales, 444 F.3d
5 148, 154 (2d Cir. 2006) (“[A]n applicant may prevail on a
6 theory of future persecution despite an IJ’s adverse
7 credibility ruling as to past persecution, so long as the
8 factual predicate of the applicant’s claim of future
9 persecution is independent of the testimony that the IJ
10 found not to be credible.”) (emphasis omitted).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
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