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GUANG ZE LIN v. HOLDER, 11-761-ag (2012)

Court: Court of Appeals for the Second Circuit Number: infco20120326071 Visitors: 13
Filed: Mar. 26, 2012
Latest Update: Mar. 26, 2012
Summary: SUMMARY ORDER 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 Guang Ze Lin, a native and citizen of China, seeks review of a February 2, 2011, order of the BIA affirming the January 20, 2009, decision of Immigration Judge ("IJ") Philip L. Morace denying his application for asylum, withholding of removal, and relief under the Convention Against T
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SUMMARY ORDER

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 Guang Ze Lin, a native and citizen of China, seeks review of a February 2, 2011, order of the BIA affirming the January 20, 2009, decision of Immigration Judge ("IJ") Philip L. Morace denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Guang Ze Lin, No. A094 934 263 (B.I.A. Feb. 2, 2011), aff'g No. A094 934 263 (Immigr. Ct. N.Y. City Jan. 20, 2009). We assume the parties' familiarity with the underlying facts and procedural history of this case.

Under the circumstances of this case, we review the IJ's decision as supplemented by the BIA's decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B)(2006); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

Lin challenges the agency's adverse credibility determination, arguing that he was credible regarding his past harm arising from his practice of Christianity. For asylum applications, such as this one, governed by the REAL ID Act, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant's "demeanor, candor, or responsiveness," and inconsistencies in his or her statements, without regard to whether they go "to the heart of the applicant's claim." 8 U.S.C. § 1158(b)(1)(B)(iii)(2006). In this case, inconsistencies and omissions in Lin's statements support the agency's adverse credibility determination. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 (2d Cir. 2008)(per curiam) (providing that, for purposes of analyzing a credibility determination, "[a]n inconsistency and an omission are . . . functionally equivalent").

As the IJ found, Lin did not mention any past mistreatment as a Christian during his March 2007 credible fear interview. Indeed, during that interview he stated that he was a Buddhist. The IJ reasonably rejected Lin's explanation that he described himself as a Buddhist as he had not been baptized at the time of that interview, because in his asylum application, he stated that he became a Christian in December 2005. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) ("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." (emphasis in original; internal quotation marks omitted)). Additionally, as the IJ noted, while Lin testified that after he was released from detention government officials searched his house for Bibles, he did not mention that event in his affidavit in support of his asylum application. Together, the omissions and inconsistencies in Lin's statements provide substantial evidence for the agency's adverse credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii)(2006).

Lin's argument that the IJ improperly speculated about the plausibility of his November 2006 arrest on rape charges and subsequent escape in making the adverse credibility determination is misplaced as the IJ, in fact, found that Lin's testimony about the November 2006 events was credible. Lin does not otherwise challenge the agency's denial of relief based on his allegations of persecution stemming from the false charges.

Because Lin's claims for asylum, withholding of removal, and CAT relief based on his practice of Christianity all rely on the same factual predicate, the agency's adverse credibility determination forecloses all relief. See Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.

FootNotes


1. The Honorable Roger J. Miner, originally a member of the panel, died on February 18, 2012. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
Source:  Leagle

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