Filed: Apr. 12, 2012
Latest Update: Feb. 22, 2020
Summary: 11-869-ag Lin v. Holder BIA Sichel, IJ A098 418 781 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
Summary: 11-869-ag Lin v. Holder BIA Sichel, IJ A098 418 781 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..
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11-869-ag
Lin v. Holder
BIA
Sichel, IJ
A098 418 781
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 New
4 York, on the 12th day of April, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSEPH M. McLAUGHLIN,
9 REENA RAGGI,
10 Circuit Judges.
11 _________________________________________
12
13 HUI RONG LIN,
14 Petitioner,
15
16 v. 11-869-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Cora Chang, New York, N.Y.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney General;
26 Leslie McKay, Assistant Director; Kelly
27 J. Walls, Trial Attorney; Stefanie
28 Notarino Hennes, Trial Attorney, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 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 Hui Rong Lin, a native and citizen of the
6 People’s Republic of China, seeks review of a February 11,
7 2011, decision of the BIA affirming the August 25, 2009,
8 decision of Immigration Judge (“IJ”) Helen Sichel denying her
9 application for withholding of removal. In re Hui Rong Lin,
10 No. A098 419 781 (B.I.A. Feb. 11, 2011), aff’g No. A098 419
11 781 (Immig. Ct. N.Y. City Aug. 25, 2009). We assume the
12 parties’ familiarity with the underlying facts and procedural
13 history of the case.
14 Under the circumstances of this case, we have reviewed
15 both the BIA’s and the IJ’s opinions. See Yun-Zui Guan v.
16 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
17 standards of review are well-established. See 8 U.S.C.
18 § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
562 F.3d 510,
19 513 (2d Cir. 2009).
20 Substantial evidence supports the agency’s conclusion
21 that Lin did not testify credibly regarding her forced
22 abortion. Particular deference is given to the trier of
23 fact’s assessment of demeanor. See Majidi v. Gonzales, 430
2
1 F.3d 77, 81 n.1 (2d Cir. 2005). In finding Lin not credible,
2 the IJ reasonably relied in part on her demeanor, noting that,
3 while Lin started crying during her testimony that she was
4 dragged to the hospital by the village cadres, “in the midst
5 of this apparent display of emotion, she looked toward the
6 bench twice and smiled slightly.” The IJ characterized Lin as
7 “wish[ing] the [IJ] to observe this display of emotion,” and
8 “question[ed] whether it was genuine emotion or an attempt to
9 influence the” IJ. Because the IJ was in the best position to
10 observe Lin’s manner while testifying, we afford her partial
11 demeanor finding particular deference. See Zhou Yun Zhang v.
12 INS,
386 F.3d 66, 73-74 (2d Cir. 2004), overruled on other
13 grounds by Shi Liang Lin v. U.S. Dep’t of Justice,
494 F.3d
14 296 (2d Cir. 2007).
15 The IJ’s demeanor finding was further supported by
16 specific examples of inconsistencies in the record. See Li
17 Hua Lin v. U.S. Dep’t of Justice,
453 F.3d 99, 109 (2d Cir.
18 2006) (“We can be still more confident in our review of
19 observations about an applicant’s demeanor where, as here,
20 they are supported by specific examples of inconsistent
21 testimony.”). As the IJ reasonably noted, in her written
22 statement, Lin claimed that she had undergone an abortion in
23 December 1997, whereas at her hearing, Lin testified that she
3
1 underwent a forced abortion in December 1998. Lin argues
2 that, during her testimony, she corrected herself and
3 testified that the abortion had taken place in 1997. Although
4 Lin did correct her testimony regarding the date, the fact
5 that the IJ failed directly to consider the explanation does
6 not present a basis for granting the petition for review. Lin
7 did not, and does not now, explain the reason she testified
8 inconsistently regarding the date. Because this inconsistency
9 was apparent, the IJ was not required to actively solicit an
10 explanation before relying on the inconsistency to support an
11 adverse credibility finding. See Majidi, 430 F.3d at 81.
12 Further, as the IJ noted, Lin testified that she first
13 discovered her pregnancy in China when she went to a physician
14 after she began feeling nauseous, and that the physician told
15 her that she was “probably” pregnant. Later, after Lin
16 testified that the physician had performed a urine test to
17 determine whether she was pregnant, the IJ asked her why the
18 physician would have said that Lin was “probably” pregnant if
19 she had confirmed it with a test. Lin responded, “What I
20 meant was I did not feel that way. She told me I am
21 pregnant.” The IJ reasonably declined to credit this
22 explanation, as it did not actually explain the inconsistency,
23 particularly in light of Lin’s testimony that she visited the
4
1 physician because she was nauseous. Further, Lin does not
2 challenge the BIA’s finding that her hearing testimony was
3 inconsistent with her written statement, which reflected that,
4 by the time she visited the doctor, she had already taken a
5 pregnancy test and received a positive result.
6 The IJ also reasonably relied on Lin’s inconsistent
7 testimony regarding whether, with either of her pregnancies in
8 the United States, she had told her treating physicians about
9 the abortion. In addition to noting the inconsistencies in
10 this testimony, the IJ characterized Lin as amending her
11 testimony after she “sensed the skepticism” that her answers
12 engendered, and this assessment of Lin’s demeanor is entitled
13 to deference. See id. at 81 n.1. Further, the IJ reasonably
14 declined to credit Lin’s explanation that she chose not to
15 tell her physicians about the abortion because they were
16 Chinese, noting that she claimed “unconvincingly that she
17 would rather risk her pregnancies than disclose the claimed
18 abortion to her physicians.”
19 Lin also argues that the IJ erred in failing to consider
20 either that Lin’s memory was faulty because the events about
21 which she was testifying had occurred 12 years in the past, or
22 that she came from a “persecuting environment” and was
23 embarrassed and ashamed by the abortion. Although each of
5
1 these explanations may plausibly account for the
2 inconsistencies in Lin’s testimony, neither is sufficient to
3 compel the conclusion that Lin’s testimony was otherwise
4 credible. See id. at 80 (“A petitioner must do more than
5 offer a ‘plausible’ explanation for his inconsistent
6 statements to secure relief; he must demonstrate that a
7 reasonable fact-finder would be compelled to credit his
8 testimony.” (internal quotation marks omitted)). Accordingly,
9 the agency did not err in denying Lin’s application for
10 withholding of removal.
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DISMISSED as moot. Any pending request for oral argument
16 in this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
6
