Filed: May 15, 2013
Latest Update: Mar. 28, 2017
Summary: 12-907 Lin v. Holder BIA Hom, IJ A099 005 587 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: 12-907 Lin v. Holder BIA Hom, IJ A099 005 587 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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12-907
Lin v. Holder
BIA
Hom, IJ
A099 005 587
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 15th day of May, two thousand thirteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 RICHARD C. WESLEY,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 MING H. LIN,
14 Petitioner,
15
16 v. 12-907
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Adedayo O. Idowu, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Francis W. Fraser,
27 Senior Litigation Counsel; Timothy
28 B. Stanton, 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 Ming H. Lin, a native and citizen of the People’s
6 Republic of China, seeks review of a February 8, 2012
7 decision of the BIA affirming the July 13, 2010 decision of
8 Immigration Judge (“IJ”) Sandy K. Hom, which denied her
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Ming H.
11 Lin, No. A099 005 587 (B.I.A. Feb. 8, 2012), aff’g No. A099
12 005 587 (Immig. Ct. N.Y. City July 13, 2010). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented and modified by the
17 BIA. See Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
18 2005); Yang v. U.S. Dep’t of Justice,
426 F.3d 520, 522 (2d
19 Cir. 2005). The applicable standards of review are well-
20 established. See 8 U.S.C. § 1252(b)(4)(B); see also Weng v.
21 Holder,
562 F.3d 510, 513 (2d Cir. 2009).
22 For applications such as Lin’s, governed by the
23 amendments made to the Immigration and Nationality Act by
2
1 the REAL ID Act of 2005, the agency may, considering the
2 totality of the circumstances, base a credibility finding on
3 the applicant’s “demeanor, candor, or responsiveness,” the
4 plausibility of her account, and inconsistencies in her
5 statements, without regard to whether they go “to the heart
6 of [her] claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
7 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per
8 curiam). We will “defer . . . to an IJ’s credibility
9 determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.
12 Here, the IJ reasonably based his adverse credibility
13 determination on Lin’s inconsistent testimony and omission
14 from her asylum application. See 8 U.S.C.
15 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin,
534 F.3d
16 at 167 (providing that an IJ may support an adverse
17 credibility determination with “any inconsistency or
18 omission”).
19 The IJ also reasonably found that Lin’s testimony that
20 Chinese officials permitted her to use her passport to exit
21 the country despite her warrant for arrest was implausible
22 and did not err in relying on that finding to find her not
3
1 credible. See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d
2 Cir. 2007)(finding that while “bald” speculation is an
3 impermissible basis for an adverse credibility finding,
4 “[t]he speculation that inheres in inference is not ‘bald’
5 if the inference is made available to the factfinder by
6 record facts, or even a single fact, viewed in the light of
7 common sense and ordinary experience”); see also Xiao Ji
8 Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 336 n.16 (2d
9 Cir. 2006). As to Lin’s demeanor, we defer to the IJ’s
10 finding that her hesitancy in answering questions affected
11 her credibility as that finding was connected to Lin’s
12 inconsistent testimony regarding the court summons. See Lin
13 v. U.S. Dep’t of Justice,
453 F.3d 99, 109 (2d Cir. 2006).
14 Lin contests the IJ’s finding that she failed to
15 provide corroborating evidence, arguing that such evidence
16 was not reasonably available. To the contrary, the IJ
17 reasonably required proof of her post-detention doctor
18 visit, or any other evidence that she had suffered a
19 dislocated hand, given that Lin testified that X-rays of her
20 hand were available. See Liu v. Holder,
575 F.3d 193, 198
21 n.5 (2d Cir. 2009). Considering that Lin provided little
22 evidence that she continued to practice Christianity after
4
1 August 2009, which is the date of the only letter she
2 provided from her church, the IJ also reasonably expected
3 testimony or affidavits from church associates. See id.
4 Despite Lin’s assertion that she was unaware that she should
5 obtain affidavits, in light of purported attempts to
6 persuade her fellow church members to testify, the IJ
7 reasonably rejected her explanation. See Majidi v.
8 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
9 Lin also quarrels with the BIA’s reliance on the U.S.
10 State Department’s 2009 International Religious Freedom
11 (“IRF”) Report because that report was not in the
12 administrative record. However, the BIA is permitted to
13 take administrative notice of government reports, such as
14 the IRF Report, see 8 C.F.R. § 1003.1(d)(3)(iv), and
15 reasonably found that the report contradicted Lin’s claim
16 based on its statement that the Chinese government had
17 provided greater freedoms to Christians in both government-
18 run and underground churches, see 2009 IRF Report,
19 http://www.state.gov/j/drl/rls/irf/2009/127268.htm.
20 Given Lin’s inconsistent testimony, her omission and
21 demeanor, and the lack of corroboration, all of which call
22 into question Lin’s documentary evidence and her practice of
23 Christianity, the totality of the circumstances supports the
5
1 agency’s adverse credibility determination. See 8 U.S.C.
2 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. As the
3 only evidence of a threat to Lin’s life or freedom or that
4 she was likely to be tortured depended upon her credibility,
5 the adverse credibility determination in this case
6 necessarily precludes success on her claims for asylum, as
7 well as withholding of removal and CAT relief. See Paul v.
8 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
6
