Filed: Aug. 19, 2016
Latest Update: Mar. 03, 2020
Summary: 15-1614 Lin v. Lynch BIA Vomacka, IJ A087 789 264 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
Summary: 15-1614 Lin v. Lynch BIA Vomacka, IJ A087 789 264 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 NOTATI..
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15-1614
Lin v. Lynch
BIA
Vomacka, IJ
A087 789 264
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
19th day of August, two thousand sixteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RICHARD C. WESLEY,
PETER W. HALL,
Circuit Judges.
_____________________________________
XUE JU LIN,
Petitioner,
v. 15-1614
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: H. Raymond Fasano, Youman, Madeo &
Fasano, LLP, New York, NY.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Derek C.
Julius, Senior Litigation Counsel;
Deitz P. Lefort, Trial Attorney,
Office of Immigration Litigation,
United States 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 Xue Ju Lin, a native and citizen of the People’s
Republic of China, seeks review of the April 21, 2015, and
October 25, 2013, decisions of the BIA affirming an October 28,
2011, 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 Xue Ju Lin,
No. A087 789 264 (B.I.A. Apr. 21, 2015, Oct. 25, 2013), aff’g
No. A087 789 264 (Immig. Ct. N.Y. City Oct. 28, 2011). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
We have reviewed the IJ’s decision as modified by the BIA.
See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
(2d Cir. 2005). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam). For
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asylum applications like Lin’s, governed by the REAL ID Act,
the agency may, “[c]onsidering the totality of the
circumstances . . . base a credibility determination on
demeanor, candor, or responsiveness of the applicant” and
inconsistencies in an applicant’s statements and other record
evidence “without regard to whether” those inconsistencies go
“to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. The
adverse credibility determination is supported by substantial
evidence.
As an initial matter, the Government is correct that Lin
has waived any challenge to the IJ’s reliance on her evasive
demeanor or her sham marriage because she did not attack these
findings in her brief. See Shunfu Li v. Mukasey, 529 F.3d 141,
146-47 (2d Cir. 2008). Moreover, as the Government argues, Lin
failed to exhaust her argument that the BIA conflated abortions
and sterilizations in relying on the 2007 State Department
Profile of Asylum Claims. The issue presented to the BIA was
whether it could take notice of the report at all, not whether
it had misinterpreted the report. Therefore, we decline to
address this argument. Lin Zhong v. U.S. Dep’t of Justice, 480
3
F.3d 104, 107, 121-23 (2d Cir. 2007). In any event, even
disregarding the challenge to the report, we conclude that the
adverse credibility determination is supported by substantial
evidence and is dispositive of Lin’s claims for relief.
Lin’s failure to challenge the IJ’s finding that she
entered into a sham marriage to obtain a visa is dispositive
of her petition because that finding, standing alone, is
sufficient to support the adverse credibility determination.
In certain circumstances “a single false document or a single
instance of false testimony may (if attributable to the
petitioner) infect the balance of the alien’s uncorroborated
or unauthenticated evidence.” Siewe v. Gonzales, 480 F.3d 160,
170 (2d Cir. 2007); see also
id. at 171 (holding that “even
ancillary evidence sometimes supports” the application of
falsus in uno falsus in omnibus (false in one thing, false in
everything)). Lin admitted that she entered into a sham
marriage to obtain a visa and immigrate to the United States.
This admission shows a propensity to lie to obtain immigration
benefits, and the agency reasonably concluded that it cast doubt
on the entirety of Lin’s claim. This conclusion is supported
by the timing of the marriage. Lin entered into the second
4
marriage prior to her second pregnancy (by her first husband).
This fact supports the conclusion that she was trying to get
into the United States—and was willing to lie to do so—before
the alleged forced sterilization. The IJ had grounds,
therefore, to conclude that she would continue to lie in her
asylum application. Siewe, 480 F.3d at 170.
Moreover, Lin’s credibility was further called into
question by her inconsistent testimony regarding the
sterilization. Lin initially testified that she was forcibly
sterilized after she gave birth to her second child. Later,
however, she testified that, after the birth of her second
child, family planning officials forced her to undergo an IUD
insertion. The IJ was not required to credit Lin’s explanation
that she misspoke: the translator confirmed the answer, and the
questions Lin was asked were simple and referred to her
testimony, given immediately before, that she had been
sterilized. Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.
2005). In addition, the fact that Lin submitted medical
evidence from a U.S. doctor to confirm that she was sterilized
does not mitigate the impact of this inconsistency. The
medical evidence does not confirm when the sterilization
5
occurred or whether it was voluntary or involuntary, and
provides no explanation for Lin’s testimony regarding an IUD.
Given the undisputed findings that Lin engaged in marriage
fraud and that she was evasive when questioned about her
marriage, as well as the discrepancy concerning what happened
to her in China (an IUD insertion or sterilization), the
“totality of the circumstances” supports the agency’s adverse
credibility determination. 8 U.S.C. § 1158(b)(1)(B)(iii);
Xiu Xia Lin, 534 F.3d at 167. Accordingly, because Lin’s claim
relied on her credibility, the agency did not err in denying
asylum, withholding of removal, and CAT relief because all three
forms of relief were based on the same factual predicate. Paul
v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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