Filed: Aug. 03, 2012
Latest Update: Feb. 12, 2020
Summary: 11-3888 Lin v. Holder BIA Gordon-Uruakpa, IJ A087 445 511 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 T
Summary: 11-3888 Lin v. Holder BIA Gordon-Uruakpa, IJ A087 445 511 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 TH..
More
11-3888
Lin v. Holder
BIA
Gordon-Uruakpa, IJ
A087 445 511
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 3rd day of August, two thousand twelve.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 GERARD E. LYNCH,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 WANHANG LIN, AKA MING CAO LIN,
14 Petitioner,
15
16 v. 11-3888
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23
24 FOR PETITIONER: Gary J. Yerman, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Shelley R. Goad, Assistant
28 Director; Elizabeth R. Chapman, Trial
29 Attorney, Office of Immigration
30 Litigation, Civil Division, United States
31 Department of Justice, Washington, D.C.
32
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 Petitioner Wanhang Lin, a native and citizen of the
6 People’s Republic of China, seeks review of a September 6,
7 2011, order of the BIA affirming the October 7, 2009,
8 decision of Immigration Judge (“IJ”) Vivienne E. Gordon-
9 Uruakpa denying his application for asylum, withholding of
10 removal, and relief under the Convention Against Torture
11 (“CAT”). In re Wanhang Lin, No. A087 445 511 (B.I.A. Sep.
12 6, 2011), aff’g No. A087 445 511 (Immig. Ct. N.Y. City Oct.
13 7, 2009). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See 8
19 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510,
20 513 (2d Cir. 2009). For asylum applications, such as Lin’s,
21 governed by the REAL ID Act, the agency may, considering the
22 totality of the circumstances, base a credibility finding on
2
1 an applicant’s demeanor, the plausibility of his account, or
2 inconsistencies in his statements, without regard to whether
3 they go “to the heart of the applicant’s claim.” 8 U.S.C.
4 § 1158(b)(1)(B)(iii).
5 Here, the agency’s adverse credibility determination
6 rested in part on the IJ’s finding that Lin’s credibility
7 was undermined because a letter he submitted from his father
8 did not include his father’s role in taking Lin to a
9 hospital after he was released from detention. Generally,
10 the agency may rely on omissions as the basis for an adverse
11 credibility determination. See Xiu Xia Lin v. Mukasey, 534
12 F.3d 162, 166 n.3 (2d Cir. 2008) (per curiam). However, the
13 agency’s assumption that the letter should have mentioned
14 that hospital visit is not supported by the record: the
15 letter was personal correspondence to Lin, detailing only
16 the broad outline of what happened to him in China and
17 wishing him good luck in his asylum application, and thus
18 there was no reason to expect that it would include this
19 detail.
20 Nevertheless, remand is not necessary as “we can state
21 with confidence that the IJ would adhere to [her] decision
22 were the petition remanded,” because there are “ample,
3
1 error-free grounds that provide substantial evidence to
2 support the IJ’s adverse credibility determination.” Singh
3 v. BIA, 438 F.3d 145, 149-50 (2d Cir. 2006) (per curiam)
4 (quotations omitted).
5 The record supports the IJ’s finding that Lin’s
6 credibility was undermined by inconsistencies between his
7 testimony and his wife’s regarding when they started
8 practicing Falun Gong and when they last practiced Falun
9 Gong. The IJ was not required to provide Lin with an
10 opportunity to explain the inconsistencies as they were
11 explicitly discussed during the hearing, putting Lin and his
12 attorney on notice. Ming Shi Xue v. BIA,
439 F.3d 111, 120-
13 21 (2d Cir. 2006). Lin also argues that the IJ erred in
14 using his wife’s testimony as the basis for an adverse
15 credibility determination, because the testimony was
16 corroborating evidence and this Court’s case law
17 distinguishes between credibility determinations and
18 findings about the adequacy of corroborating evidence.
19 However, under the REAL ID Act, immigration judges may rely
20 on inconsistencies between an applicant’s statements and any
21 “other evidence [in the] record” in making a credibility
22 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii).
4
1 The record also supports the IJ’s finding that Lin’s
2 credibility was undermined by the fact that he failed to
3 testify about being hit in the head with a brick when he was
4 first arrested, while his written statement stated that he
5 was hit. The IJ was not compelled to accept Lin’s
6 explanation that he was confused, as the record shows that
7 Lin was explicitly asked what happened when he was arrested.
8 See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
9 petitioner must do more than offer a plausible explanation
10 for his inconsistent statements to secure relief; he must
11 demonstrate that a reasonable fact-finder would be compelled
12 to credit his testimony.” (emphasis in original; quotations
13 omitted)).
14 Additionally, the IJ reasonably concluded that Lin’s
15 corroborating evidence did not rehabilitate his otherwise
16 questionable testimony. See Biao Yang v. Gonzales,
496 F.3d
17 268, 273 (2d Cir. 2007). As discussed above, Lin’s wife’s
18 testimony contradicted his testimony. And we defer to the
19 IJ’s conclusion that the uncorroborated detention notice Lin
20 submitted was entitled to no weight in light of a State
21 Department report indicating that many documents from Fujian
22 Province, the source of the notice, are fraudulent. We
5
1 similarly must defer to the IJ’s other concerns about Lin’s
2 credibility. See Qin Wen Zheng v. Gonzales, 500 F.3d 143,
3 149 (2d Cir. 2007).
4 Together, the inconsistences between Lin’s testimony
5 and his wife’s testimony and his asylum application
6 constitute substantial evidence in support of the agency’s
7 adverse credibility determination. See 8 U.S.C.
8 § 1158(b)(1)(B)(iii). Accordingly, the agency did not err
9 in denying Lin’s applications for asylum, withholding of
10 removal, or CAT relief based on that credibility finding.
11 See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, the pending motion
14 for a stay of removal in this petition is DENIED as moot.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
6
