10-2178-ag
    Lin v. Holder
                                                                                  BIA
                                                                           Mulligan, IJ
                                                                          A089 252 791
                      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.

    At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 16th day of August, two thousand eleven.
    PRESENT:
             ROBERT A. KATZMANN,
             BARRINGTON D. PARKER,
             REENA RAGGI,
                  Circuit Judges.
    ______________________________________

    FENG LIN,
                    Petitioner,

                    v.                                     10-2178-ag
                                                           NAC
    ERIC H. HOLDER, JR., U.S. ATTORNEY
    GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:                Feng Li, Moslemi and Associates,
                                   Inc., New York, N.Y.

    FOR RESPONDENT:                Tony West, Assistant Attorney
                                   General; Keith I. McManus, Senior
                                   Litigation Counsel; Nairi S.
                                   Gruzenski, Trial Attorney, Office of
                                   Immigration Litigation, U.S.
                                   Department of Justice, Washington
                                   D.C.
    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is GRANTED.

    Feng Lin, a native and citizen of the People’s Republic

of China, seeks review of the May 4, 2010 order of the BIA

affirming the July 31, 2008 decision of Immigration Judge

(“IJ”) Thomas J. Mulligan denying his application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”).       In re Lin, No. A089 252

791 (B.I.A. May 4, 2010), aff’g       No. A089 252 791 (Immigr.

Ct. N.Y. City July 31, 2008).       We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    Under the circumstances of this case, where “the BIA

agrees with the IJ’s conclusion that a petitioner is not

credible,” we “review both the BIA’s and IJ’s opinions.”

Yun-Zui Guan v. Gonzales, 

, 394 (2d Cir.

2005)(per curiam).   The applicable standards of review are

well-established.    See 8 U.S.C. § 1252(b)(4)(B); Corovic v.

Mukasey, 

, 95 (2d Cir. 2008); Xiu Xia Lin v.

Mukasey, 

, 165-66 (2d Cir. 2008)(per curiam).

    Although we generally afford “particular deference” to

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an IJ’s assessment of an applicant’s demeanor, Jin Chen v.

U.S. Dep’t of Justice, 

, 113 (2d Cir. 2005), we

have never held that a demeanor finding alone is substantial

evidence sufficient to support an adverse credibility

determination, see Li Hua Lin v. U.S. Dep’t of Justice, 

, 109 (2d Cir. 2006) (holding that “we can be [] more

confident in our review of observations about an applicant’s

demeanor where . . . they are supported by specific examples

of inconsistent testimony”); see also   Ramsameachire v.

Ashcroft, 

, 177-78 (2d Cir. 2004) (“Although

credibility determinations are entitled to the same

deference on review as other factual determinations, the

fact that the [agency] has relied primarily on credibility

grounds . . .   cannot insulate the decision from review.”).

Indeed, we have indicated in other cases that certain

factors standing alone, including demeanor, may not be

sufficient to support an IJ’s denial of relief.     See Diallo

v. Holder, 399 F. App’x 678 (2d Cir. 2010) (summary order)

(granting petition where IJ’s adverse credibility

determination was based solely on applicant’s demeanor); cf.

Kone v. Holder, 

, 148 (2d Cir. 2010) (holding

that voluntary trips back to one’s home country, standing

alone, do not suggest either any fundamental change in

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circumstances or the possibility of internal relocation);

Diallo v. INS, 

, 287 (2d Cir. 2000) (holding

that a failure to corroborate one’s testimony with

supporting evidence cannot form the sole basis for an

adverse credibility determination).

    In finding Lin not credible, the IJ based his

determination primarily on Lin’s demeanor, and, although the

IJ noted that Lin exhibited a particularly nervous demeanor,

the IJ did not point to any specific portions of

inconsistent testimony or anything in the record to support

the demeanor finding.   Although the IJ additionally noted

that Lin testified that his mother attempted to obtain his

medical records in China, but failed to include that

information in her initial letter or submit any subsequent

statement, the IJ emphasized that he was giving that

omission or lack of corroboration limited weight and that

the adverse credibility determination was based primarily on

the negative demeanor finding.    Because the BIA has not

addressed whether a demeanor finding can form the sole or

primary basis for an adverse credibility determination when

the finding is not tied to any particular testimony, see,

e.g., In re A-S-, 21 I. & N. Dec. 1106, 1111-12 (B.I.A.

1998); In re B-, 21 I. & N. Dec. 66, 70 (B.I.A. 1995), and

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when the only other ground is an omission that the IJ

acknowledged was being given reduced weight, we remand for

the BIA to address the issue in the first instance.

    For the foregoing reasons, the petition for review is

GRANTED, the BIA’s order is VACATED, and the case is

REMANDED for further proceedings consistent with this Order.

As we have completed our review, the pending motion for a

stay of removal in this petition is DISMISSED as moot

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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