Filed: Mar. 25, 2013
Latest Update: Mar. 28, 2017
Summary: 11-5264 Jin v. Holder BIA Vomacka, IJ A089 905 846 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: 11-5264 Jin v. Holder BIA Vomacka, IJ A089 905 846 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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11-5264
Jin v. Holder
BIA
Vomacka, IJ
A089 905 846
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 25th day of March, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 SHOUCHANG JIN,
14 Petitioner,
15
16 v. 11-5264
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Leslie McKay,
28 Assistant Director; Kristofer R.
29 McDonald, 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 Shouchang Jin, a native and citizen of the People’s
10 Republic of China, seeks review of a November 21, 2011,
11 decision of the BIA affirming the October 15, 2009, decision
12 of Immigration Judge (“IJ”) Alan Vomacka, which denied his
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re
15 Shouchang Jin, No. A089 905 846 (B.I.A. Nov. 21, 2011),
16 aff’g No. A089 905 846 (Immig. Ct. N.Y. City Oct. 15, 2009).
17 We assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decision 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 Yanqin Weng v. Holder,
24
562 F.3d 510, 513 (2d Cir. 2009). For asylum applications
2
1 such as Jin’s, governed by the amendments made to the
2 Immigration and Nationality Act by the REAL ID Act of 2005,
3 the agency “may rely on any inconsistency or omission in
4 making an adverse credibility determination as long as the
5 ‘totality of the circumstances’ establishes that an asylum
6 applicant is not credible.” Xiu Xia Lin v. Mukasey, 534
7 F.3d 162, 167 (2d Cir. 2008) (per curiam) (emphasis in
8 original) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)).
9 The agency found that Jin’s testimony was incredible,
10 in part, because his testimony that he was hospitalized
11 after a severe beating for his practice of Falun Gong was
12 omitted from both his asylum application and a letter from
13 his parents. Jin contends that his failure to include his
14 hospitalization in his asylum application was not a valid
15 basis for finding him incredible. However, as Jin’s claim
16 that he was hospitalized after being beaten by Chinese
17 police implicated the degree of alleged harm that he
18 suffered, an essential element of his claim, Jian Qiu Liu v.
19 Holder,
632 F.3d 820, 822 (2d Cir. 2011), his argument is
20 misplaced because his omission was sufficiently dramatic to
21 undermine his credibility, Xu Duan Dong v. Ashcroft, 406
22 F.3d 110, 111-12 (2d Cir. 2005). Contrary to Jin’s
3
1 assertion, he was provided an opportunity to explain this
2 omission during his hearing, and failed to provide a
3 compelling explanation. Majidi v. Gonzales, 430 F.3d 77,
4 80-81 (2d Cir. 2005). Jin’s related argument that the
5 agency applied an inappropriately stringent standard in
6 finding him incredible lacks merit because this case is
7 governed by the amendments made to the Immigration and
8 Nationality Act by the REAL ID Act of 2005. Xiu Xia Lin, 534
9 F.3d at 163-64 (finding Secaida-Rosales v. INS,
331 F.3d
10 297, 307 (2d Cir. 2003), superseded by the REAL ID Act).
11 Jin further faults the agency for requiring additional
12 corroboration and failing to credit photographs he submitted
13 related to his Falun Gong practice. However, the agency
14 permissibly required corroboration of Jin’s hospitalization,
15 Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007) (per
16 curiam), and his contradictory testimony about his failure
17 to corroborate that visit does not compel a contrary
18 conclusion, Majidi, 430 F.3d at 80-81. Moreover, the agency
19 permissibly declined to credit photographs allegedly showing
20 Jin’s Falun Gong activities in the United States, especially
21 given his inability to provide testimony or a statement
22 regarding that activity. See Xiao Ji Chen v. U.S. Dep’t of
23 Justice,
471 F.3d 315, 342 (2d Cir. 2006).
4
1 Accordingly, as the only evidence of a threat to Jin’s
2 life or freedom depended upon his credibility, the adverse
3 credibility determination forecloses his claims for asylum,
4 withholding of removal, and CAT relief. See Paul v.
5 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
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
5
