Filed: Feb. 01, 2010
Latest Update: Mar. 02, 2020
Summary: 08-4235-ag Lin v. Holder BIA Harbeck, IJ A200-126-076 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 N
Summary: 08-4235-ag Lin v. Holder BIA Harbeck, IJ A200-126-076 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 NO..
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08-4235-ag
Lin v. Holder
BIA
Harbeck, IJ
A200-126-076
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 1 st day of February, two thousand ten.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 ROBERT D. SACK,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11
12 _______________________________________
13
14 NENG YING LIN,
15 Petitioner,
16
17 v. 08-4235-ag
18 NAC
19 ERIC H. HOLDER, JR., ATTORNEY GENERAL, *
20 and BOARD OF IMMIGRATION APPEALS
21 Respondents.
22 ______________________________________
23
24
25
26
27
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder, Jr., is automatically substituted
for former Attorney General Michael B. Mukasey as respondent in this
case.
1 FOR PETITIONER: John Z. Zhang, New York, New York.
2
3 FOR RESPONDENTS: Gregory G. Katsas, Assistant
4 Attorney General, Civil Division,
5 Mary Jane Candaux, Assistant
6 Director, Office of Immigration
7 Litigation, Michael C. Heyse, Trial
8 Attorney, Office of Immigration
9 Litigation, Civil Division, United
10 States Department of Justice,
11 Washington, D.C.
12
13 UPON DUE CONSIDERATION of this petition for review of a
14 Board of Immigration Appeals (“BIA”) decision, it is hereby
15 ORDERED, ADJUDGED, AND DECREED that the petition for review
16 is DENIED.
17 Petitioner Neng Ying Lin, a native and citizen of the
18 People’s Republic of China, seeks review of a July 31, 2008
19 order of the BIA affirming the May 10, 2007 decision of
20 Immigration Judge (“IJ”) Dorothy Harbeck denying his
21 applications for asylum, withholding of removal, and relief
22 under the Convention Against Torture (“CAT”). In re Neng
23 Ying Lin, No. A200 126 076 (B.I.A. July 31, 2008), aff’g No.
24 A200 126 076 (Immig. Ct. N.Y. City May 10, 2007). We assume
25 the parties’ familiarity with the underlying facts and
26 procedural history in this case.
27 When the BIA agrees with the IJ’s conclusion that a
28 petitioner is not credible and, without rejecting any of the
29 IJ’s grounds for decision, emphasizes particular aspects of
2
1 that decision, this Court reviews both the BIA’s and IJ’s
2 opinions — or more precisely, the Court reviews the IJ’s
3 decision including the portions not explicitly discussed by
4 the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
5 Cir. 2005). We review the agency’s factual findings,
6 including adverse credibility findings, under the
7 substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);
8 see also Corovic v. Mukasey,
519 F.3d 90, 95 (2d Cir. 2008).
9 For asylum applications governed by the REAL ID Act of 2005,
10 the agency may, considering the totality of the
11 circumstances, base a credibility finding on an asylum
12 applicant’s demeanor, the plausibility of his or her
13 account, and inconsistencies in his or her statements,
14 without regard to whether they go “to the heart of the
15 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
16 defer . . . to an IJ’s credibility determination unless,
17 from the totality of the circumstances, it is plain that no
18 reasonable fact-finder could make such an adverse
19 credibility ruling.” Xiu Xia Lin v. Mukasey,
534 F.3d 162,
20 167 (2d Cir. 2008). We review de novo questions of law and
21 the application of law to undisputed fact. See, e.g.,
22 Salimatou Bah v. Mukasey,
529 F.3d 99, 110 (2d Cir. 2008).
23
3
1 Substantial evidence supports the IJ’s adverse
2 credibility determination. See Corovic, 519 F.3d at 95.
3 Lin did not challenge before the BIA or this Court the IJ’s
4 reliance on Lin’s demeanor and responsiveness and the IJ’s
5 finding that Lin’s testimony concerning his wife’s inability
6 to obtain an x-ray showing that she was sterilized was
7 inconsistent. Accordingly, any challenge to these findings
8 is both unexhausted and waived, and these findings stand as
9 valid bases for the IJ’s adverse credibility determination.
10 See Shunfu Li v. Mukasey,
529 F.3d 141, 146 (2d Cir. 2008).
11 With respect to the findings Lin does challenge, they
12 are supported by substantial evidence. In addition to
13 finding that Lin’s testimony was inconsistent concerning his
14 wife’s inability to obtain an x-ray, the IJ also found
15 implausible Lin’s testimony that his wife could not obtain
16 an x-ray at private hospitals in the city because private
17 hospitals do not have x-ray machines. Although Lin
18 summarily asserts that his explanation was reasonable, such
19 an assertion does not suffice to demonstrate error in the
20 IJ’s decision. See Ying Li v. BCIS,
529 F.3d 79, 82-83 (2d
21 Cir. 2008). Therefore, the IJ also properly found that
22 Lin’s failure to provide evidence corroborating his wife’s
23 sterilization undermined his credibility. See Xiao Ji Chen
4
1 v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 2006).
2 Because the record does not compel the conclusion that
3 Lin was credible, Xiu Xia
Lin, 534 F.3d at 167, the IJ
4 properly denied his applications for asylum, withholding of
5 removal, and CAT relief. See Paul v. Gonzales,
444 F.3d
6 148, 156-57 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of
7 Justice,
426 F.3d 520, 523 (2d Cir. 2005).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, the pending motion
10 for a stay of removal in this petition is DISMISSED as moot.
11
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
16
5
