Filed: Aug. 17, 2011
Latest Update: Feb. 22, 2020
Summary: 10-3134-ag Lin v. Holder BIA Morace, IJ A089 252 827 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: 10-3134-ag Lin v. Holder BIA Morace, IJ A089 252 827 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..
More
10-3134-ag
Lin v. Holder
BIA
Morace, IJ
A089 252 827
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 17th day of August, two thousand eleven.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RICHARD C. WESLEY,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 Jin Chun Lin,
14 Petitioner,
15
16 v. 10-3134-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Farah Loftus, Century City, CA.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Linda S. Wernery, Assistant
27 Director; Janice K. Redfern, Senior
28 Litigation Counsel, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Jin Chun Lin, a native and citizen of China,
6 seeks review of a July 19, 2010, order of the BIA affirming
7 the October 14, 2008, decision of Immigration Judge (“IJ”)
8 Philip L. Morace denying Lin’s application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Jin Chun Lin, No. A089 252
11 827 (B.I.A. July 19, 2010), aff’g No. A089 252 827 (Immig.
12 Ct. N.Y. City Oct. 14, 2008). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA’s decision.
17 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
18 The applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
20 F.3d 510, 513 (2d Cir. 2009).
21 For asylum applications, such as this one, governed by
22 the REAL ID Act, the agency may, considering the totality of
23 the circumstances, base a credibility finding on an asylum
24 applicant’s “demeanor, candor, or responsiveness,” and
2
1 inconsistencies in his or her statements, without regard to
2 whether they go “to the heart of the applicant’s claim.”
3 8 U.S.C. § 1158(b)(1)(B)(iii). Here, the agency found that
4 Lin was not credible based on inconsistencies between his
5 testimony and his asylum application, long pauses in his
6 testimony, and unresponsive answers. The record supports
7 these findings. See Majidi v. Gonzales, 430 F.3d 77, 81 n.1
8 (2d Cir. 2005) (noting this Court’s deference’s to an IJ’s
9 findings regarding an asylum applicant’s demeanor because
10 the IJ has “the unique advantage . . . of having heard
11 directly from the applicant” (internal citations and
12 quotations omitted)). While Lin contends that these pauses
13 and non-responsive answers were a result of a confusing line
14 of questioning by the government attorney, the record
15 indicates that the pauses and non-responsive answers
16 continued throughout his testimony, not only as a response
17 to the confusing questioning.
18 Having found Lin not credible, the agency reasonably
19 expected him to rehabilitate his testimony by providing
20 corroboration of his wife’s alleged abortion or medical
21 records supporting his claim that he was beaten by family
22 planning officials. See Biao Yang v. Gonzales,
496 F.3d
3
1 268, 273 (2d Cir. 2007) (finding that once an asylum
2 applicant’s testimony has been called into question, an IJ
3 can expect corroboration). Lin asserts in his brief that
4 documentation of his wife’s abortion was not available
5 because the abortion was involuntary, but counsel’s
6 unsupported assertions in a brief do not constitute
7 evidence, see INS v. Phinpathya,
464 U.S. 183, 188 n.6
8 (1984), and Lin did not present this argument to either the
9 IJ or the BIA on appeal.
10 Together, the problems the agency identified in Lin’s
11 testimony and his failure to provide sufficient
12 corroboration provide substantial evidence for its adverse
13 credibility determination. See 8 U.S.C.
14 § 1158(b)(1)(B)(iii). Because Lin’s claims for asylum,
15 withholding of removal, and CAT relief were all based on the
16 same factual predicate, the agency’s adverse credibility
17 determination forecloses all relief. See Paul v. Gonzales,
18
444 F.3d 148, 156 (2d Cir. 2006).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
22 is VACATED, and any pending motion for a stay of removal in
4
1 this petition is DISMISSED as moot. Any pending request for
2 oral argument in this petition is DENIED in accordance with
3 Federal Rule of Appellate Procedure 34(a)(2), and Second
4 Circuit Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
5
