Filed: Jul. 06, 2012
Latest Update: Mar. 26, 2017
Summary: 11-3827 BIA Lin v. Holder Nelson, IJ A087 550 621 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: 11-3827 BIA Lin v. Holder Nelson, IJ A087 550 621 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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11-3827 BIA
Lin v. Holder Nelson, IJ
A087 550 621
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 6th day of July, two thousand twelve.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 ROBERT A. KATZMANN,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 HAI LIN,
14 Petitioner,
15
16 v. 11-3827
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Edward J. Cuccia, Ferro & Cuccia,
24 New York, New York
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; David V. Bernal, Assistant
28 Director; Dara S. Smith, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Hai Lin, a native and citizen of the People’s Republic
6 of China, seeks review of an August 25, 2011, decision of
7 the BIA affirming the March 24, 2010, decision of
8 Immigration Judge (“IJ”) Barbara A. Nelson, which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Hai
11 Lin, No. A087 550 621 (B.I.A. Aug. 25, 2011), aff’g No. A087
12 550 621 (Immig. Ct. N.Y. City Mar. 24, 2010). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision, including the portions not explicitly
17 discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d
18 391, 394 (2d Cir. 2005). The applicable standards of review
19 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see
20 also Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir.
21 2009).
22 For asylum applications governed by the amendments made
23 to the Immigration and Nationality Act by the REAL ID Act of
2
1 2005, the agency may, considering the totality of the
2 circumstances, base a credibility finding on an asylum
3 applicant’s “demeanor, candor, or responsiveness,” the
4 plausibility of his account, and inconsistencies in his
5 statements, without regard to whether they go “to the heart
6 of the applicant’s claim.” See 8 U.S.C.
7 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
8 167 (2d Cir. 2008). We will “defer to an IJ’s credibility
9 determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
12 In this case, the agency reasonably based its adverse
13 credibility determination on the internal inconsistencies in
14 Lin’s testimony, and between his testimony, his asylum
15 application and his mother’s letter, as well as his
16 demeanor.
17 As the agency noted, there were discrepancies between
18 Lin’s mother’s letter, his asylum application, and his
19 testimony as to whether the police visited his home after he
20 was released from detention, and, if they did visit, who was
21 at the home when they arrived. Lin also testified
22 inconsistently regarding the circumstances surrounding his
3
1 release from detention. The agency properly relied on the
2 cumulative effect of these inconsistencies to support the
3 adverse credibility finding. See 8 U.S.C.
4 § 1158(b)(1)(B)(iii) (an IJ may base a credibility
5 determination on “the totality of the circumstances, and all
6 relevant factors”). Moreover, Lin was provided with
7 multiple opportunities to reconcile his testimony and he
8 failed to present reasonable explanations for the
9 discrepancies. See Majidi v. Gonzales, 430 F.3d 77, 80-81
10 (2d Cir. 2005).
11 The adverse credibility determination is further
12 supported by the IJ’s demeanor finding. In finding Lin not
13 credible, the IJ reasonably relied in part on his demeanor,
14 noting that Lin was “extremely hesitant and evasive” when
15 responding to certain questions. Because the IJ was in the
16 best position to observe Lin’s manner while testifying, we
17 afford this finding particular deference. See Zhou Yun
18 Zhang v. INS,
386 F.3d 66, 73-74 (2d Cir. 2004), overruled
19 on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice,
20
494 F.3d 296 (2d Cir. 2007).
21 Therefore, in this case, the totality of the
22 circumstances support the agency’s adverse credibility
4
1 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
2 Lin, 534 F.3d at 167. Because the adverse credibility
3 determination is dispositive of Lin’s asylum claim, we do
4 not reach his argument regarding the timeliness of his
5 application. Furthermore, because the only evidence of a
6 threat to Lin’s life or freedom depended upon his
7 credibility, the adverse credibility determination in this
8 case necessarily precludes success on his claims for
9 withholding of removal and CAT relief. See Paul v.
10 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
11 U.S. Dep’t of Justice,
426 F.3d 520, 523 (2d Cir. 2005).
12 Before this Court, Lin asserts that because the IJ
13 erred in finding that he had not proved by clear and
14 convincing evidence his date of entry into the United
15 States, the entirety of the IJ’s adverse credibility
16 determination was tainted. Because Lin is raising this
17 argument for the first time before this Court, we decline to
18 consider it. See Lin Zhong v. U.S. Dep’t of Justice, 480
19 F.3d 104, 119-20, 124 (2d Cir. 2007); Foster v. INS, 376
20 F.3d 75, 78 (2d Cir. 2004).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
23 removal that the Court previously granted in this petition
5
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
6
