Xiao Jie Lin v. Lynch

13-1710
Lin v. Lynch
BIA
Balasquide, IJ
A089 468 694
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 24th day of June, two thousand sixteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROSEMARY S. POOLER,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 XIAO JIE LIN,
14 Petitioner,
15
16 v. 13-1710
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Robert Tsigler, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; John S. Hogan, Senior
27 Litigation Counsel; Nicole J.
28 Thomas-Dorris, Trial Attorney, Civil
29 Division, Office of Immigration
30 Litigation, United States Department
31 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 Petitioner Xiao Jie Lin, a native and citizen of China,
6 seeks review of an April 18, 2013, decision of the BIA
7 affirming a December 21, 2010, decision of an Immigration
8 Judge (“IJ”) denying Lin’s application for asylum,
9 withholding of removal and relief under the Convention
10 Against Torture (“CAT”). In re Xiao Jie Lin, No. A089 768
11 694 (B.I.A. Apr. 18, 2013), aff’g No. A089 768 694 (Immig.
12 Ct. N.Y.C. Dec. 21, 2010). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well established. 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 Lin filed his asylum application in 2009; so, the REAL
22 ID Act applies. REAL ID Act of 2005, Div. B of Pub. L. No.
2
1 109-13, 119 Stat. 302, 303 (2005) (codified at 8 U.S.C.
2 § 1158(b)(1)(B)(iii)). Under that Act, the agency may, in
3 light of “the totality of the circumstances,” base a
4 credibility finding on an asylum applicant’s “demeanor,
5 candor, or responsiveness,” the plausibility of his account,
6 and inconsistencies in his statements, without regard to
7 whether those inconsistencies go “to the heart of the
8 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
9 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). The
10 agency need not credit an applicant’s explanations for
11 inconsistent testimony unless those explanations would
12 compel a reasonable fact-finder to do so. See Majidi v.
13 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). We “defer to
14 an IJ’s credibility determination unless, from the totality
15 of the circumstances, it is plain that no reasonable
16 fact-finder could make such an adverse credibility ruling.”
17 Xiu Xia Lin, 534 F.3d at 167.
18 Here, the IJ reasonably relied on the inconsistencies
19 between the testimony of Lin and his only witness, Father
20 Andrew Tai. Their testimony conflicted on three points: how
21 often Lin attended church in China; his family’s religious
22 practices (or lack thereof); and where he was baptized for
3
1 the first time. Lin testified that he attended church in
2 China only three times. Father Tai, however, testified that
3 Lin told him he attended Catholic church services in China
4 “frequently.” Lin testified that his family was not
5 religious, and submitted a letter from his father that said:
6 “We . . . do not believe in the religion, and worried about
7 his participation in the underground Church.” Father Tai,
8 however, testified that Lin told him that his family and
9 relatives in China “go to church and attend their events.”
10 Lin testified that he was first baptized in New York.
11 Father Tai, however, testified that he asked Lin to “re-
12 study” Catholicism because Lin told him that he doubted his
13 Chinese baptism ceremony was “correct.”
14 These inconsistencies were “collateral or ancillary” to
15 Lin’s claim, which centered on his religious practice in the
16 United States, not China. But after the REAL ID Act, “an IJ
17 may rely on any inconsistency or omission in making an
18 adverse credibility determination as long as the ‘totality
19 of the circumstances’ establishes that an asylum applicant
20 is not credible.” Xiu Xia Lin, 534 F.3d at 167 (quoting 8
21 U.S.C. § 1158(b)(1)(B)(iii)). The IJ was within his
22 discretion to deem the “cumulative effect” of the
23 inconsistencies to be “consequential,” and to find Father
4
1 Tai credible and Lin not credible. Tu Lin v. Gonzales, 446
2 F.3d 395, 402 (2d Cir. 2006).
3 The IJ did not prevent Lin from explaining the
4 inconsistencies between his own testimony and that of Father
5 Tai. “[A]n IJ may not rest an adverse credibility finding
6 on non-dramatic putative contradictions or incongruities in
7 an alien’s narrative without first giving the applicant a
8 chance to reconcile the testimony.” Ming Shi Xue v. BIA,
9 439 F.3d 111, 125 (2d Cir. 2006). The contradictions
10 between Lin and Father Tai were dramatic. After Father Tai
11 left the courtroom, Lin’s attorney voiced concern “that
12 Father Tai’s testimony has now called into question my
13 client’s credibility” and explained that she called the
14 priest only to testify to Lin’s “U.S. attendance in church,
15 not to test his past history.” The IJ responded that Father
16 Tai’s testimony “impeached [Lin’s] testimony in regards to
17 his family members and that’s . . . part of the record and I
18 cannot ignore that.” Lin’s attorney considered calling
19 additional witnesses, but decided against it. In her
20 closing argument counsel did not explain the
21 inconsistencies, but implored the IJ to focus on Lin’s
22 testimony and corroborating documents. On this record, the
23 IJ did not run afoul of the Ming Shi Xue rule.
5
1 Having reasonably found that Lin failed to establish
2 eligibility for asylum on credibility grounds, the agency
3 did not err in denying withholding of removal and relief
4 under the CAT, because these claims shared the same factual
5 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
6 Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
7 520, 523 (2d Cir. 2005).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
6