Filed: Jan. 24, 2018
Latest Update: Mar. 03, 2020
Summary: 16-2347 Jin v. Sessions BIA Lamb, IJ A087 446 554 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: 16-2347 Jin v. Sessions BIA Lamb, IJ A087 446 554 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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16-2347
Jin v. Sessions
BIA
Lamb, IJ
A087 446 554
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
24th day of January, two thousand eighteen.
PRESENT:
DENNIS JACOBS,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
YUJI JIN,
Petitioner,
v. 16-2347
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Evan Goldberg, Law Office of
Theodore M. Davis, New York, NY.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Stephen
J. Flynn, Assistant Director;
Annette M. Wietecha; Evan P.
Schultz, Trial Attorneys, 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 Yuji Jin, a native and citizen of the People’s
Republic of China, seeks review of a June 16, 2016, decision
of the BIA affirming a February 4, 2015, decision of an
Immigration Judge (“IJ”) denying Jin’s application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Yuji Jin, No. A087 446 554 (B.I.A. June
16, 2016), aff’g No. A087 446 554 (Immig. Ct. N.Y. City Feb.
4, 2015). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
In lieu of filing a brief, the Government moves for summary
denial of Jin’s petition for review. Summary denial is
warranted only if a petition is frivolous, Pillay v. INS, 45
F.3d 14, 17 (2d Cir. 1995). As Jin has filed a merits brief,
we treat the Government’s motion as a response to that brief,
and deny the petition.
Under the circumstances of this case, we have reviewed the
IJ’s decision as modified by the BIA. Xue Hong Yang v. U.S.
Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yun-Zui Guan
v. Gonzales,
432 F.3d 391, 394 (2d Cir. 2005). The applicable
2
standards of review are well established. 8 U.S.C.
§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
(2d Cir. 2008). “Considering the totality of the
circumstances,” the agency may base an adverse credibility
determination on discrepancies between an applicant’s oral and
written statements and between an applicant’s statements and
other record evidence, as well as “any other relevant factor.”
8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 163-65.
“We defer . . . to an IJ’s credibility determination unless
. . . it is plain that no reasonable fact-finder could make such
an adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
Substantial evidence supports the agency’s adverse credibility
ruling.
Jin testified that in 2013 Chinese police went to her home
in China and told her husband that she would be arrested upon
return to China if she did not cease her pro-democracy
activities. Jin’s amended asylum application, however,
submitted less than a month before her hearing, omitted this
incident. This omission alone is substantial evidence
supporting the adverse credibility determination. Xiu Xia
Lin, 534 F.3d at 166 n.3 (“An inconsistency and an omission
are . . . functionally equivalent.”); Xian Tuan Ye v. Dep’t of
Homeland Sec.,
446 F.3d 289, 295 (2d Cir. 2006) (“[A] material
3
inconsistency in an aspect of [an applicant’s] story that served
as an example of the very persecution from which he sought
asylum . . . afforded substantial evidence to support the
adverse credibility finding.” (internal quotation marks
omitted)). This visit was central to proving Jin’s alleged
fear of persecution on account of her Chinese Freedom and
Democracy Party (“CFDP”) activities, and its omission calls
into question whether the Chinese government was aware of her
activities. Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d
Cir. 2008) (“[T]o establish a well-founded fear of persecution
in the absence of any evidence of past persecution, an alien
must make some showing that authorities in his country of
nationality are either aware of his activities or likely to
become aware of his activities.”). Given the centrality of
this omission and Jin’s last-minute attempt to supplement her
application at her hearing, the agency reasonably concluded
that she was not credible. Xian Tuan
Ye, 446 F.3d at 295; Siewe
v. Gonzales,
480 F.3d 160, 170 (2d Cir. 2007). Moreover, the
agency was not required to accept Jin’s explanation that she
forgot to include this incident because she had known about it
since 2013 and it was the primary reason she feared persecution
in China. See Majidi v. Gonzales,
430 F.3d 77, 80 (2d Cir. 2005)
(“A petitioner must do more than offer a plausible explanation
4
for his inconsistent statements to secure relief; he must
demonstrate that a reasonable fact-finder would be compelled
to credit his testimony.” (internal quotation marks
omitted)).
Additionally, that there was no letter from Jin’s husband
corroborating this incident further undermined Jin’s
credibility. Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
2007) (“An applicant’s failure to corroborate [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.”). Although Jin testified that her husband was
afraid to send a letter, the agency was not compelled to accept
the explanation, especially given Jin’s submissions of letters
from her father and cousin in China regarding past encounters
with Chinese officials.
Majidi, 430 F.3d at 80-81.
Because this omission and lack of corroborating evidence
constitute substantial evidence supproting the adverse
credibility determination, see Xian Tuan Ye, 446 F.3d at 295;
Biao
Yang, 496 F.3d at 273, and because Jin’s claims for asylum,
withholding, and CAT relief were all based on the same factual
predicate, the adverse credibility determination is
5
dispositive of all three. 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, the Government’s
motion for summary denial is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6
