Filed: Apr. 21, 2010
Latest Update: Mar. 02, 2020
Summary: 09-2138-ag Lin v. Holder BIA Weisel, IJ A093 389 927 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
Summary: 09-2138-ag Lin v. Holder BIA Weisel, IJ A093 389 927 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 NOT..
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09-2138-ag
Lin v. Holder
BIA
Weisel, IJ
A093 389 927
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 21 st day of April, two thousand nine.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 NING LIN,
14 Petitioner,
15
16 v. 09-2138-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Yu Zhang, Law Office of Fuhao Yang,
24 PLLC, New York.
25
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; Carl H. McIntyre, Assistant
3 Director; Gary J. Newkirk, Trial
4 Attorney, Office of Immigration
5 Litigation, Civil Division, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Ning Lin, a native and citizen of the
14 People’s Republic of China, seeks review of an April 23,
15 2009 order of the BIA affirming the March 26, 2008 decision
16 of Immigration Judge (“IJ”) Robert D. Weisel denying his
17 application for asylum, withholding of removal, and relief
18 under the Convention Against Torture (“CAT”). In re Ning
19 Lin, No. A093 389 927 (B.I.A. Apr. 23, 2009), aff’g No. A093
20 389 927 (Immig. Ct. N.Y. City Mar. 26, 2008). We assume the
21 parties’ familiarity with the underlying facts and
22 procedural history in this case.
23 Under the circumstances of this case, we review both
24 the IJ’s and the BIA’s opinions. Jigme Wangchuck v. DHS,
25 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards
26 of review are well-established. 8 U.S.C.
2
1 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
2 167 (2d Cir. 2008) (per curiam).
3 Substantial evidence supports the IJ’s adverse
4 credibility determination. In finding Lin not credible, the
5 IJ found that he testified inconsistently regarding: (1) his
6 wife’s symptoms when she discovered her pregnancy in July
7 2005; (2) whether his wife was sterilized; and (3) how many
8 months pregnant his wife was in October 2005 when she was
9 allegedly forced to undergo an abortion. Lin does not
10 challenge the first of these findings. Nor does he
11 challenge the finding that he was not responsive “during
12 several portions of [his] testimony.” Accordingly, these
13 findings stand as valid bases for the IJ’s adverse
14 credibility determination. See Shunfu Li v. Mukasey, 529
15 F.3d 141, 147-48 (2d Cir. 2008).
16 Lin argues that the IJ misconstrued the record
17 regarding his testimony about his wife’s sterilization.
18 Having previously testified that his wife was forcibly
19 sterilized, Lin later testified that his wife had an IUD
20 inserted. When the government’s attorney asked, “So she was
21 not sterilized, is that your answer?,” Lin replied, “No.”
22 Lin argues that he was responding to the question, “is that
23 your answer,” and not confirming the government’s assertion,
3
1 “so she was not sterilized.” Although a reasonable
2 adjudicator could have reached that conclusion, we do not
3 find that any reasonable factfinder would have been
4 compelled to reach a conclusion contrary to that of the IJ.
5 See Siewe v. Gonzales, 480 F.3d 160, 167-68 (2d Cir. 2007);
6 see also Ahmed v. Ashcroft,
286 F.3d 611, 612 (2d Cir.
7 2002). Additionally, to the extent Lin argues that he was
8 confused by the line of questioning regarding how many
9 months pregnant his wife was when she allegedly had an
10 abortion, this argument is belied by the record. Indeed,
11 after Lin gave multiple inconsistent answers in response to
12 the same question, the IJ asked whether Lin understood the
13 question, and he responded that he did. Given that the IJ
14 provided Lin an opportunity to explain his answers, it was
15 not improper for the IJ to rely on his inconsistent
16 responses. See Zhi Wei Pang v. BCIS,
448 F.3d 102, 109-10
17 (2d Cir. 2006); Ming Shi Xue v. BIA,
439 F.3d 111, 124 (2d
18 Cir. 2006).
19 Finally, despite Lin’s argument that the “BIA
20 erroneously affirmed the IJ’s adverse credibility finding
21 based on several minor inconsistencies,” under the REAL ID
22 Act, which applies to Lin’s application for relief, “an IJ
23 may rely on any inconsistency or omission in making an
4
1 adverse credibility determination as long as the ‘totality
2 of the circumstances’ establishes that an asylum applicant
3 is not credible.” Xiu Xia Lin, 534 F.3d at 167 (emphasis in
4 original). Given Lin’s inconsistent testimony, substantial
5 evidence supports the IJ’s adverse credibility
6 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
7
Lin, 534 F.3d at 167. Therefore, the IJ properly denied his
8 applications for asylum, withholding of removal, and CAT
9 relief because the only evidence that Lin would be
10 persecuted or tortured depended on his credibility. See
11 Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir. 2006); Xue Hong
12 Yang v. U.S. Dep’t of Justice,
426 F.3d 520, 523 (2d Cir.
13 2005).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any pending motion
16 for a stay of removal in this petition is DISMISSED as moot.
17 Any pending request for oral argument in this petition is
18 DENIED in accordance with Federal Rule of Appellate
19 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
20
21
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
25
26
5
