Lin v. Sessions

16-521
Lin v. Sessions
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 30th day of May, two thousand eighteen.
PRESENT:
ROSEMARY S. POOLER,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_____________________________________
GUI GUO LIN, AKA GUO LIN,
Petitioner,
v. No. 16-521
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Yee Ling Poon (Deborah Niedermeyer,
on the brief,) Law Office of Yee
Ling Poon, LLC, New York, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Bernard
A. Joseph, Senior Litigation
Counsel; Jason Wisecup, Trial
Attorney, Office of Immigration
Litigation, United States 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.
Petitioner Gui Guo Lin, a native and citizen of China,
seeks review of a February 2, 2016, decision of the BIA
affirming a February 24, 2014, decision of an Immigration
Judge (“IJ”) denying Lin’s application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Gui Guo Lin, No. A205 271 162
(B.I.A. Feb. 2, 2016), aff’g No. A205 271 162 (Immig. Ct.
N.Y.C. Feb. 24, 2014). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA (i.e., minus the
IJ’s internal relocation finding, which the BIA declined to
reach). See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
520, 522 (2d Cir. 2005). The applicable standards of review
are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
The governing REAL ID Act credibility standard provides
that the agency must “[c]onsider[] the totality of the
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circumstances,” and may base a credibility finding on an
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his account, and inconsistencies in his or
his witness’s statements, “without regard to whether” they go
“to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
defer . . . to an IJ’s credibility determination unless
. . . it is plain that no reasonable fact-finder could make
such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
at 167. Further, “[a] petitioner must do more than offer a
plausible explanation for his inconsistent statements to
secure relief; he must demonstrate that a reasonable fact-
finder would be compelled to credit his testimony.” Majidi
v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (internal
quotation marks omitted). For the reasons that follow, we
conclude that substantial evidence supports the agency’s
finding that Lin was not credible.
First, the agency reasonably relied on the inconsistency
between Lin’s testimony and his wife’s letter regarding the
police visits after Lin left China. See Xiu Xia Lin, 534
F.3d at 166-67 & n.3 (“An inconsistency and an omission
are . . . functionally equivalent” for credibility
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purposes). Lin testified that the police came to his home
“more than 10 times” while he was in hiding in China and “more
than 10 times” after he fled to the United States. Lin’s
wife’s letter, however, states only that “officials still
came to [the] house to see if [Lin] was home” while Lin was
in hiding in China. Certified Administrative Record (“CAR”)
at 273. Lin was asked why his wife’s letter omitted the police
visits after he left China, and he answered that the police
continue to visit his home. The IJ was not compelled to
accept this explanation because it was nonresponsive and did
not resolve Lin’s wife’s omission. See Majidi, 430 F.3d at
80. Moreover, while Lin argued before the BIA that he merely
provided additional details about the number of visits
mentioned in his wife’s letter, the BIA reasonably rejected
this explanation because it did not resolve the inconsistency
involving the police’s visits after Lin’s departure from
China. See id. Notwithstanding that Lin’s wife’s letter
states that, “[d]uring that time, the officials still came to
my house,” the agency reasonably determined that the
referenced time period relates to when Lin was in hiding in
China. See CAR at 273; Siewe v. Gonzales, 480 F.3d 160, 167
(2d Cir. 2007) (“Where there are two permissible views of the
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evidence, the factfinder’s choice between them cannot be
clearly erroneous.” (internal quotation marks omitted)).
Second, the agency reasonably relied on the inconsistency
between Lin’s and his pastor’s testimony about whether Lin
had ever mentioned his past experiences in China. See Xiu
Xia Lin, 534 F.3d at 163-64. Lin testified that he told his
pastor during casual conversation that he fled China because
his wife exceeded the birth limit in violation of family
planning policy. Lin’s pastor testified, however, that Lin
told him only that he was married and had children in China.
Although Lin argued before the agency that his pastor had a
faulty memory, was hard of hearing, and had macular
degeneration, the agency was not compelled to accept these
explanations for the inconsistency. See Majidi, 430 F.3d at
80. While Lin’s pastor testified that he was hard of hearing
and had vision problems due to macular degeneration, he did
not testify that he had a tendency to be forgetful. He was
clear in his testimony that Lin had never told him about Lin’s
wife’s forced sterilization, and he had no problems recalling
other details of his conversation about Lin’s family.
Third, the agency reasonably based its credibility
determination on the IJ’s observations of Lin’s demeanor.
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See Xiu Xia Lin, 534 F.3d at 163-64. “[D]emeanor is
paradigmatically the sort of evidence that a fact-finder is
best positioned to evaluate,” Li Zu Guan v. INS, 453 F.3d
129, 140 (2d Cir. 2006), and we therefore “give particular
deference to credibility determinations that are based on
the adjudicator’s observation of the applicant’s demeanor,”
Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d
Cir. 2005). Here, the IJ reasonably found that Lin was
evasive and non-responsive when asked about the police’s
visits to his home and needed to be asked multiple times
before providing even basic information about these visits.
The record does indicate that Lin only provided the least
detail about these visits after repeated questioning. The
bare transcript does not allow us to determine whether this
failure to answer can be attributed to Lin’s evasion or
something else, but it is consistent with the IJ’s finding.
Because the IJ’s demeanor finding is directly linked to
testimony the IJ reasonably found to be non-credible, we
have even more reason to defer to it. See Li Hua Lin v.
U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We
can be still more confident in our review of observations
about an applicant’s demeanor where, as here, they are
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supported by specific examples of inconsistent
testimony.”).
Lastly, the agency reasonably found Lin’s corroborating
evidence insufficient to rehabilitate his credibility. See
Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
applicant’s failure to corroborate his or her testimony may
bear on credibility, because the absence of corroboration in
general makes an applicant unable to rehabilitate testimony
that has already been called into question.”). Lin does not
challenge the treatment of his wife’s letter, which the agency
reasonably declined to credit because it was inconsistent
with Lin’s testimony. See Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that the
weight accorded to an applicant’s evidence “lie[s] largely
within the discretion of the IJ” (internal quotation marks
omitted)). Instead, Lin argues that the IJ failed to provide
notice of his need to submit additional corroboration. His
argument is misplaced, however, because he did not exhaust it
before the BIA, and “[a]n alien applying for relief or
protection from removal has the burden of proof.” 8 U.S.C
§ 1229a(c)(4)(A); Lin Zhong v. U.S. Dep’t of Justice, 480
F.3d 104, 122 (2d Cir. 2007) (providing that judicially
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imposed issue exhaustion is mandatory); cf. Chuilu Liu v.
Holder, 575 F.3d 193, 198 (2d Cir. 2009) (“While [the Court]
ha[s] sometimes remanded a case if the IJ failed to explain
his reliance on a lack of corroborating evidence, the alien
bears the ultimate burden of introducing such evidence
without prompting from the IJ.”).
Given the agency’s foregoing findings regarding demeanor
and inconsistencies, and its reasonable treatment of Lin’s
corroborating evidence, the totality of the circumstances
supports the adverse credibility determination. See Xiu Xia
Lin, 534 F.3d at 165-66. A reasonable adjudicator would not
be compelled to conclude otherwise. Id. at 167. The
credibility finding is dispositive of Lin’s family-planning-
based claims for asylum, withholding of removal, and CAT
relief because those claims are each based on the same
discredited factual predicate. See Paul v. Gonzales, 444
F.3d 148, 156-57 (2d Cir. 2006). Lin does not challenge the
agency’s determination that he did not independently
establish a well-founded fear of future persecution based on
his Christian faith and has therefore waived review of that
determination. See Norton v. Sam’s Club, 145 F.3d 114, 117
(2d Cir. 1998) (“Issues not sufficiently argued in the briefs
8
are considered waived and normally will not be addressed on
appeal.”).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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