Filed: Aug. 23, 2012
Latest Update: Feb. 12, 2020
Summary: 11-5211 BIA Jin v. Holder Hom, IJ A087 438 535 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: 11-5211 BIA Jin v. Holder Hom, IJ A087 438 535 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 ..
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11-5211 BIA
Jin v. Holder Hom, IJ
A087 438 535
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 23rd day of August, two thousand twelve.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 MEI HUA JIN,
14 Petitioner,
15
16 v. 11-5211
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Evan Goldberg, Law Office of
24 Theodore M. Davis, New York, New
25 York.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; Paul Fiorino,
29 Senior Litigation Counsel; Deitz P.
1 Lefort, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Mei Hua Jin, a native and citizen of the People’s
11 Republic of China, seeks review of a November 21, 2011,
12 decision of the BIA affirming the December 9, 2009, decision
13 of Immigration Judge (“IJ”) Sandy K. Hom, which denied her
14 application for asylum, withholding of removal and relief
15 under the Convention Against Torture (“CAT”). In re Mei Hua
16 Jin, No. A087 438 535 (B.I.A. Nov. 21, 2011), aff’g No. A087
17 438 535 (Immig. Ct. N.Y. City Dec. 9, 2009). We assume the
18 parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 Under the circumstances of this case, we have reviewed
21 the IJ’s decision as modified by the BIA decision. See Xue
22 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
23 Cir. 2005). The applicable standards of review are well-
24 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia
25 Lin v. Mukasey,
534 F.3d 162, 167 (2d Cir. 2008) (per
2
1 curiam). Jin effectively challenges two agency findings:
2 (1) her testimony regarding her claim that she provided
3 assistance to North Korean refugees in China was not
4 credible; and (2) her testimony that she converted to
5 Christianity in the United States did not establish a well-
6 founded fear of persecution.
7 For asylum applications, such as Jin’s, governed by the
8 amendments made to the Immigration and Nationality Act by
9 the REAL ID Act of 2005, the agency may, considering the
10 totality of the circumstances, base a credibility finding on
11 the consistency between an applicant’s written and oral
12 statements, without regard to whether an inconsistency goes
13 “to the heart of the applicant’s claim.” See 8 U.S.C.
14 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
15 Here, the agency reasonably found that Jin’s testimony
16 regarding her refugee assistance claim was incredible
17 because her testimony that her interaction with the Chinese
18 police ended with a stern warning was inconsistent with her
19 asylum application, which stated that the “[p]olice were
20 sent to arrest me, but I was able to avoid them.” See Xiu
21 Xia
Lin, 534 F.3d at 167. Jin’s arguments that this
22 inconsistency was “a matter of semantics” and “too minor” to
3
1 support an adverse credibility determination are inadequate
2 to establish that “no reasonable fact-finder could make such
3 an adverse credibility ruling” based on the noted
4 inconsistency. Id. (finding that “an IJ may rely on any
5 inconsistency or omission in making an adverse credibility
6 determination as long as the totality of the circumstances
7 establishes that an asylum applicant is not credible”)
8 (emphasis in original) (internal quotation marks omitted).
9 Moreover, Jin’s argument that the agency’s adverse
10 credibility determination was predicated on “improper
11 factors,” including her ability to reside safely in China
12 for more than a year without arrest and her ability to leave
13 China “without harassment by authorities,” is not supported
14 by the record, because the BIA did not rely on those factors
15 in determining that the adverse credibility finding was not
16 clearly erroneous, but rather found that these factors
17 showed there was not a well-founded fear of future
18 persecution even assuming credibility. Accordingly, because
19 the totality of the circumstances supports the agency’s
20 adverse credibility determination, we defer to that finding.
21 See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at
22 167.
23 The government’s argument that Jin failed to exhaust
24 her claim that she has a well-founded fear of persecution in
4
1 China based on her conversion to Christianity in the United
2 States is unavailing because the BIA elected to address that
3 argument, even though Jin did not raise it before the
4 agency. See Waldron v. INS, 17 F.3d 511, 515 n. 7 (2d Cir.
5 1994). However, the agency reasonably determined that Jin
6 failed to establish a well-founded fear of persecution on
7 account of her practice of Christianity, because she failed
8 to produce or cite any record evidence suggesting that
9 Chinese authorities are either aware or likely to become
10 aware of her practice of Christianity in the United States.
11 See Hongsheng Leng v. Mukasey,
528 F.3d 135, 143 (2d Cir.
12 2008) (per curiam).
13 Finally, Jin has waived her CAT claim and any challenge
14 to the agency’s finding that she did not establish past
15 persecution in China. Furthermore, the failure of her
16 asylum claims necessarily precludes success on her claims
17 for withholding of removal. See Paul v. Gonzales,
444 F.3d
18 148, 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
23 this petition is DISMISSED as moot. Any pending request for
5
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
8
6
