13-3881
    Lin v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A201 020 782
                        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
    18th day of February, two thousand sixteen.

    PRESENT:
             ROSEMARY S. POOLER,
             BARRINGTON D. PARKER,
             DENNY CHIN,
                  Circuit Judges.
    _____________________________________

    SHI CHUN LIN,
             Petitioner,

                   v.
                                                                            13-3881
                                                                            NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,*
             Respondent.
    _____________________________________




    * Pursuant to Federal Rule of Appellate Procedure
    43(c)(2), Attorney General Loretta E. Lynch is automatically
    substituted for former Attorney General Eric H. Holder, Jr.
FOR PETITIONER:                    Michael Brown, Law Office of
                                   Michael A.O. Brown, New York,
                                   New York.

FOR RESPONDENT:                    Stuart F. Delery, Assistant
                                   Attorney General; Russell
                                   J.E. Verby, Senior Litigation
                                   Counsel; Tim Ramnitz,
                                   Attorney; Office of
                                   Immigration Litigation, U.S.
                                   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 Shi Chun Lin, a native and citizen of China,

seeks review of a September 26, 2013, decision of the BIA

affirming a July 31, 2012, 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 Shi Chun Lin, No. A201 020 782 (B.I.A. Sept.

26, 2013), aff’g No. A201 020 782 (Immig. Ct. N.Y. City July

31, 2012).    We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we review the IJ’s

decision as modified by the BIA.   See Xue Hong Yang v. U.S. Dep’t

of Justice, 

, 522 (2d Cir. 2005).     The applicable

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standards of review are well established.               See 8 U.S.C.

§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 

, 165-66

(2d Cir. 2008) (per curiam).

    For asylum applications, like Lin’s, governed by the REAL

ID Act, the agency may, “[c]onsidering the totality of the

circumstances,”     base   a   credibility    finding   on   an   asylum

applicant’s    “demeanor,      candor,   or    responsiveness,”        the

plausibility   of   his    account,    and   inconsistencies      in   his

statements, “without regard to whether” they go “to the heart

of the applicant’s claim,” so long as they reasonably support

an inference that the applicant is not credible.               8 U.S.C.

§ 1158(b)(1)(B)(iii); see Xiu Xia 

.                “We

defer therefore 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 

.        Substantial evidence

supports the IJ’s finding that Lin was not credible.

    The IJ’s credibility determination was properly based on

Lin’s inconsistent testimony.          Lin testified inconsistently

with respect to when his biological child was born, when his

wife was taken for forcible sterilization, who introduced him

to Christianity, which Christian holiday he celebrated most


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recently, and how often he attends church.               The IJ considered

and    reasonably        rejected   Lin’s     explanations      for    these

inconsistencies.         See Majidi v. Gonzales, 

, 80-81

(2d Cir. 2005) (holding that agency need not credit applicant’s

explanations       for     inconsistent      testimony      unless     those

explanations would compel reasonable fact-finder to do so).

Lin explained his inconsistencies with nonresponsive answers,

by stating that he misspoke, and by apologizing; the IJ

reasonably rejected these purported explanations.                

credibility determination was further supported

by Lin’s demeanor.         “[D]emeanor is paradigmatically the sort

of evidence that a fact-finder is best positioned to evaluate.”

Li    Zu   Guan   v.   INS,   

,   140   (2d   Cir.   2006).

Accordingly, we 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, 

, 113 (2d Cir. 2005).           The record supports

the IJ’s findings that Lin was nonresponsive to some questions

and that there were long pauses in his testimony.              Because the

IJ was best positioned to assess Lin’s manner while testifying,

we defer to the agency on this point.              See Zhou Yun Zhang v.

INS, 

, 73-74 (2d Cir. 2004), overruled on other


                                      4
grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 

(2d Cir. 2007).

    The IJ’s credibility determination was also properly based

on Lin’s failure to provide corroboration.             Biao Yang v.

Gonzales, 

, 273 (2d Cir. 2007) (per curiam).       Having

called   into    question   the   credibility   of   Lin’s   testimony

regarding his practice of Christianity in the United States,

the IJ reasonably relied on Lin’s failure to offer the testimony

of his pastor or written statements or testimony from fellow

church members.     Lin contends that the demand for such evidence

was unreasonable because, as he explained at the hearing,

although his pastor was unwilling to appear, Lin had provided

a letter with the telephone number at which the pastor could

be contacted.      Thus, the BIA’s statement that Lin “did not

proffer . . . any written statements from the pastor” is

incorrect.      Nevertheless, remand for further proceedings would

be futile because the agency would likely reach the same

decision absent this statement in light of the numerous

inconsistencies and negative demeanor finding.           See Xiao Ji

Chen v. U.S Dep’t of Justice, 

, 339 (2d Cir. 2006)

(explaining that “[t]he overarching test for deeming a remand

futile” is whether “the reviewing court can ‘confidently


                                   5
predict’ that the agency would reach the same decision absent

the errors that were made” (citation omitted)).         Moreover, the

pastor’s letter does not resolve the inconsistencies regarding

Lin’s church attendance or the Christian holiday he celebrated

most recently, as it merely states Lin’s baptism date and that

he attends church.

    Given the inconsistent testimony, problematic demeanor,

and lack of corroborating evidence, the “totality of the

circumstances”   supports    the   agency’s   adverse    credibility

determination.      See Xiu Xia 

.          Lin’s

argument, that the inconsistencies are too insignificant to

form the basis of an adverse credibility determination, is

misplaced.    First, the REAL ID Act allows the agency to base

a credibility determination on “any inconsistency.”              

original).     Nevertheless, the inconsistencies at

issue here go to the heart of Lin’s claim, calling into question

whether Lin ever violated the family planning policy, was or

currently is a Christian, and, in turn, suffered the persecution

he alleged.    As all of Lin’s claims share the same factual

predicate,    the    adverse   credibility      determination     is

dispositive of asylum, withholding of removal, and CAT relief.

Paul v. Gonzales, 

, 156-57 (2d Cir. 2006).


                                   6
    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 DENIED 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




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