Filed: Mar. 09, 2010
Latest Update: Mar. 02, 2020
Summary: 09-2312-ag Lin v. Holder BIA Lamb, IJ A099 538 811 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: 09-2312-ag Lin v. Holder BIA Lamb, IJ A099 538 811 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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09-2312-ag
Lin v. Holder
BIA
Lamb, IJ
A099 538 811
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 9 th day of March, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 ROBERT A. KATZMANN,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 BIN LIN,
14 Petitioner,
15
16 v. 09-2312-ag
17 NAC
18 UNITED STATES DEPARTMENT OF JUSTICE,
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondents.
22 _______________________________________
23
24 FOR PETITIONER: Dehai Zhang, Flushing, N.Y.
25
26 FOR RESPONDENTS: Tony West, Assistant Attorney
27 General; Susan K. Houser, Senior
28 Litigation Counsel; Gary J. Newkirk,
29 Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED, that the petition for review
8 is DENIED.
9 Bin Lin, a native and citizen of the People’s Republic
10 of China, seeks review of a May 13, 2009, order of the BIA
11 affirming the August 13, 2007, decision of Immigration Judge
12 (“IJ”) Elizabeth A. Lamb, which denied her application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Bin Lin, No. A099
15 538 811 (B.I.A. May 13, 2009), aff’g No. A099 538 811
16 (Immig. Ct. N.Y. City Aug. 13, 2007). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 Under the circumstances of this case, we review the
20 decision of the IJ as supplemented by the BIA. See Yan Chen
21 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
22 applicable standards of review are well-established. See
23 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,
24
534 F.3d 162, 165-66 (2d Cir. 2008) ; Manzur v. U.S. Dep’t of
2
1 Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
2 I. Past Persecution
3 Substantial evidence supports the agency’s adverse
4 credibility determination . Under the substantial evidence
5 standard, “[w]e defer . . . to an IJ’s credibility
6 determination unless, from the totality of the
7 circumstances, it is plain that no reasonable fact-finder
8 could make such an adverse credibility ruling.” Xiu Xia
9
Lin, 534 F.3d at 167. For asylum applications governed by
10 the REAL ID Act, the agency may, considering the totality of
11 the circumstances, base a credibility finding on an asylum
12 applicant’s “demeanor, candor, or responsiveness,” the
13 plausibility of his or her account, and inconsistencies in
14 his or her statements, without regard to whether they go “to
15 the heart of the applicant’s claim.” 8 U.S.C. §
16 1158(b)(1)(B)(iii).
17 We find no error in the IJ’s determination that
18 portions of Lin’s testimony were implausible. We will not
19 disturb such findings as long as they are “tethered to
20 record evidence, and there is nothing else in the record
21 from which a firm conviction of error could properly be
22 derived.” See Wensheng Yan v. Mukasey,
509 F.3d 63, 67 (2d
3
1 Cir. 2007); see also Siewe v. Gonzales, 480 F.3d 160, 169
2 (2d Cir. 2007). The agency reasonably found implausible
3 Lin’s testimony that, despite growing up in China, receiving
4 a middle school education, and having been denied a marriage
5 license, she was not aware of the requirement that couples
6 obtain a birth permit before having a child. This finding
7 was tethered to record evidence discussing the pervasiveness
8 of China’s population control campaign, including its
9 inclusion in the middle school curriculum. Additionally, we
10 find no error in the IJ’s finding that Lin’s failure to
11 present any authenticated corroboration further undermined
12 the credibility of her already suspect testimony. See Biao
13 Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007) (“An
14 applicant’s failure to corroborate his or her testimony may
15 bear on credibility, because the absence of corroboration in
16 general makes an applicant unable to rehabilitate testimony
17 that has already been called into question .”). Therefore,
18 substantial evidence supports the agency’s finding that
19 Lin’s claim regarding her alleged forced abortion in China
20 was not credible. See 8 U.S.C. § 1252(b)(4)(B).
21 II. Well-Founded Fear of Persecution
22 We are also unpersuaded by Lin’s argument that she has
4
1 a well-founded fear of persecution in China based on her
2 desire, readiness, and willingness to have more children
3 than the family planning policy permits. We note that,
4 although the agency failed to consider this claim, Lin does
5 not argue that its failure to do so was error. Even if Lin
6 had made such an argument, remand would be futile. See Xiao
7 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.
8 2006) (finding that the “overarching test for deeming a
9 remand futile” is whether the reviewing court can
10 “confidently predict that the IJ would reach the same
11 decision absent the errors that were made” (internal
12 quotation marks omitted)). Indeed, because Lin is not
13 married, is not pregnant, and has no children, her claim
14 regarding her desire to one day have children is entirely
15 too speculative to be objectively reasonable. See Jian Xing
16 Huang v. INS,
421 F.3d 125, 128-29 (2d Cir. 2005) (holding
17 that, absent solid support in the record for the
18 petitioner’s assertion that he would be subjected to forced
19 sterilization, his fear was “speculative at best”).
20 Finally, Lin does not challenge the agency’s denial of
21 her withholding of removal or CAT claims before this Court.
22 Even assuming that Lin’s challenge to the IJ’s adverse
23 credibility determination suffices to challenge the agency’s
5
1 denial of each of her applications for relief, that
2 determination undermines each claim to the extent they were
3 based on the same factual predicate. See Paul v. Gonzales,
4 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S.
5 Dep’t of Justice,
426 F.3d 520, 523 (2d Cir. 2005).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
18
6
