Filed: Nov. 08, 2019
Latest Update: Mar. 03, 2020
Summary: 17-3220 Lin v. Barr BIA Schoppert, IJ A200 245 507 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 NOTA
Summary: 17-3220 Lin v. Barr BIA Schoppert, IJ A200 245 507 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 NOTAT..
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17-3220
Lin v. Barr
BIA
Schoppert, IJ
A200 245 507
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.
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 8th day of November, two thousand nineteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
XIUDAN LIN, AKA LIN XIUDAN
Petitioner,
v. 17-3220
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, Esq., The Yerman
Group, LLC, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Leslie McKay,
Senior Litigation Counsel; Lisa
Morinelli, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, DC.
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 Xiudan Lin, a native and citizen of China,
seeks review of a September 13, 2017 decision of the BIA
affirming an October 31, 2016 decision of an Immigration Judge
(“IJ”) denying asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Xiudan
Lin, No. A200 245 507 (B.I.A. Sept. 13, 2017), aff’g No. A200
245 507 (Immig. Ct. N.Y.C. Oct. 31, 2016). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case, and we refer to them only as necessary
to explain our decision to deny the petition.
We have reviewed both the IJ’s and the BIA’s decisions.
See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528
(2d Cir. 2006). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v.
Sessions,
891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse
credibility determination for substantial evidence).
“Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
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determination on . . . the consistency between the applicant’s
. . . written and oral statements . . . , the internal
consistency of each such statement, [and] the consistency of
such statements with other evidence of record . . . without
regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim, or any other
relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer
. . . to an IJ’s credibility determination unless, from the
totality of the circumstances, it is plain that no reasonable
fact-finder could make such an adverse credibility ruling.”
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008);
accord Hong Fei
Gao, 891 F.3d at 76. Applying these
standards, we conclude that the agency’s adverse credibility
determination is supported by substantial evidence.
As an initial matter, the agency did not err in relying
on Lin’s airport interview. See Ramsameachire v. Ashcroft,
357 F.3d 169, 179-81 (2d Cir. 2004) (observing that a
credibility determination can be based on inconsistencies
arising from an airport interview). We “exercise caution”
when reviewing these initial statements “because such
interviews may be perceived . . . as coercive or threatening
. . . [and] aliens may not be entirely forthcoming in the
3
initial interview.” Yun-Zui Guan v. Gonzales, 432 F.3d 391,
396 (2d Cir. 2005) (internal quotation marks and emphasis
omitted). But here, we identify no error in the agency’s
reliance on the interview statements because the interview
record “bears hallmarks of accuracy and reliability.” Ming
Zhang v. Holder,
585 F.3d 715, 721 (2d Cir. 2009) (quoting
Ramsameachire, 357 F.3d at 181). The interview was
memorialized in a typed question and answer format,
indicating that it is close to a verbatim record. Further,
the interview included questions designed to elicit an asylum
claim, such as why Lin left China and came to the United
States; whether she feared return to her home country; and
whether she would be harmed upon return. Lin was responsive
to the questions during the interview, which was conducted
through a Mandarin interpreter. In addition, Lin initialed
each page of the interview and signed the last page. See
Ramsameachire, 357 F.3d at 181 (finding airport interview
record had “hallmarks of accuracy and reliability, as it [wa]s
typewritten, signed by [the petitioner], and initialed by him
on each page”).
In light of that preliminary conclusion, we find that
substantial evidence supports the agency’s determination
4
that her testimony was not credible. At the airport
interview Lin did not mention factors she later pointed to
in support of her asylum claim: her practice of
Christianity, her arrest, and her continued fear of
persecution on that basis. Nor did she then identify as
Chinese family planning cadres the men who she said forced
her to have an abortion. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 165-67.
Rather, when asked at the airport interview why she came to
the United States and what she feared in China, Lin said
that she came to work and stated that her former boyfriend
who was married had sent men to force her to have abortion.
But during her subsequent credible fear interview, in her
asylum statement, and at her hearing, she claimed that she
left China because the Chinese police arrested her, beat
her, and detained her for seven days for attending an
underground Christian church. And, during her credible
fear interview in November 2011, she did not identify the
men who took her to have a forced abortion. She also
stated that she did not know the identities of the men who
later kidnapped her and held her in a warehouse when she
tried to report the forced abortion. Further, at her June
5
2016 asylum hearing, she alleged for the first time that
the men who took her to undergo a forced abortion were
family planning cadres. These inconsistencies concern the
incidents that formed the basis of her claim for relief,
and accordingly are strongly supportive of the agency’s
adverse credibility determination. See Xian Tuan Ye v.
Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006)
(concluding that inconsistency regarding “example of the
very persecution from which [petitioner] sought asylum . .
. afforded substantial evidence to support the adverse
credibility finding” (internal quotation marks and
citations omitted)).
The agency was not compelled to accept Lin’s
explanations for these discrepancies, which were primarily
that she was frightened and nervous during her airport
interview. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d
Cir. 2005) (“A petitioner must do more than offer a
plausible explanation for h[er] inconsistent statements to
secure relief; [s]he must demonstrate that a reasonable
fact-finder would be compelled to credit h[er] testimony.”
(internal quotation marks omitted)); see also Ming
Zhang,
585 F.3d at 722 (noting that an applicant’s assertion of
6
nervousness or fear during an airport interview does not
overcome a record of a sworn statement that has been deemed
sufficiently reliable).
The agency also reasonably rejected Lin’s efforts to
rehabilitate her testimony. 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.”). The agency reasonably declined
to afford significant weight to letters from Lin’s friends
and family in China because those individuals were not
available for cross-examination, Lin’s mother was an
interested party, and Lin’s mother’s letter did not
corroborate that the alleged forced abortion occurred. See
Y.C. v. Holder,
741 F.3d 324, 334 (2d Cir. 2013) (deferring
to agency’s decision to afford little weight to spouse’s
letter because it was unsworn and from an interested witness).
Our determination that substantial evidence supports
the agency’s adverse credibility determination is also
dispositive of her claims of asylum, withholding of
removal, and CAT relief because all three forms of relief
7
rest on the same factual predicate. See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe
Clerk of Court
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