Filed: Sep. 27, 2010
Latest Update: Feb. 21, 2020
Summary: 09-2398-ag Lin v. Holder BIA Bain, IJ A097 958 004 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: 09-2398-ag Lin v. Holder BIA Bain, IJ A097 958 004 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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09-2398-ag
Lin v. Holder
BIA
Bain, IJ
A097 958 004
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 27 th day of September, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RICHARD C. WESLEY,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 YIN FANG LIN,
14 Petitioner,
15
16 v. 09-2398-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Michael G. Radigan, Aberdeen, New
24 Jersey.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Jennifer L. Lightbody,
28 Senior Litigation Counsel; Edward E.
29 Wiggers, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
33 UPON DUE CONSIDERATION of this petition for review of a
1 Board of Immigration Appeals (“BIA”) decision, it is hereby
2 ORDERED, ADJUDGED, AND DECREED that the petition for review
3 is DENIED.
4 Yin Fang Lin, a native and citizen of China, seeks
5 review of a May 8, 2009, order of the BIA, affirming the
6 October 31, 2007 decision of Immigration Judge (“IJ”) Terry
7 A. Bain, which denied his application for asylum,
8 withholding of removal, and relief under the Convention
9 Against Torture (“CAT”). In re Yin Fang Lin, No. A097 958
10 004 (B.I.A. May 8, 2009), aff’g No. A097 958 004 (Immig. Ct.
11 N.Y. City Oct. 31, 2007). We assume the parties’
12 familiarity with the underlying facts and procedural history
13 in this case.
14 Under the circumstances of this case, we review the
15 IJ’s decision as supplemented by the BIA. See Chen v.
16 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
17 standards of review are well-established. See Salimatou Bah
18 v. Mukasey,
529 F.3d 99, 110 (2d Cir. 2008); Corovic v.
19 Mukasey,
519 F.3d 90, 95 (2d Cir. 2008).
20 The agency’s adverse credibility determination is
21 supported by substantial evidence. The IJ did not err in
22 finding implausible Lin’s testimony that he held a banquet
2
1 for the birth of his second child despite the fact that his
2 second child’s birth violated the family planning policy
3 when he also testified that he did not get married because
4 he was afraid that the wedding ceremony would attract the
5 attention of family planning officials. See Yan v. Mukasey,
6 509 F.3d 63, 67 (2d Cir. 2007) (finding that when “the
7 reasons for the [IJ’s] incredulity are evident,” the
8 implausibility finding is supported by substantial evidence
9 because it is tethered to the record). Similarly, the BIA
10 reasonably noted that although Lin’s children were
11 purportedly born in a distant village to avoid alerting
12 family planning officials of their births in violation of
13 the family planning policy, Lin held a banquet to celebrate
14 the birth of his second child in his home village. See
id.
15 While Lin argues that the IJ and the BIA failed to consider
16 his explanation that he could not hold a marriage ceremony
17 because he and his girlfriend were not of legal age to marry
18 under the family planning policy, the IJ explicitly
19 considered this explanation and reasonably declined to
20 credit it. See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d
21 Cir. 2005).
22 The IJ also found implausible Lin’s testimony that,
3
1 despite his claim that he loved his girlfriend, he abandoned
2 her and fled when family planning officials confronted him
3 at the banquet for their second child. Further, the IJ
4 found implausible Lin’s testimony that he did not attempt to
5 contact his girlfriend for two months after the incident at
6 the banquet. Lin asserts that this implausibility finding
7 is erroneous because the IJ engaged in speculation.
8 However, while bald speculation is an impermissible basis
9 for an adverse credibility finding, “[t]he speculation that
10 inheres in inference is not “bald” if the inference is made
11 available to the factfinder by record facts, or even a
12 single fact, viewed in the light of common sense and
13 ordinary experience.” Siewe v. Gonzales, 480 F.3d 160, 168-
14 69 (2d Cir. 2007). While Lin also asserts that the IJ’s
15 implausibility findings do not go to the heart of his claim,
16 this argument is meritless because Lin’s purported
17 confrontation with family planning officials at the banquet
18 formed the basis for his claim of a well-founded fear of
19 persecution. See Secaida-Rosales v. INS,
331 F.3d 297, 308
20 (2d Cir. 2003).
21 Additionally, the IJ’s adverse credibility
22 determination was based, in part, on Lin’s failure to
23 provide corroboration for his claim that he fathered two
4
1 children in China. Because an applicant’s failure to
2 corroborate his testimony may bear on credibility, this
3 finding was not erroneous. See Biao Yang v. Gonzales, 496
4 F.3d 268, 273 (2d Cir. 2007).
5 Because Lin based his claims for withholding of removal
6 and CAT relief on the same factual predicate as his asylum
7 claim, which the agency reasonably found not credible, those
8 claims necessarily fail. See Paul v. Gonzales,
444 F.3d
9 148, 156 (2d Cir. 2006); Yang v. U.S. Dep’t of Justice, 426
10 F.3d 520, 523 (2d Cir. 2005).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2) and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
5
