Filed: Jan. 06, 2014
Latest Update: Mar. 02, 2020
Summary: 12-3159 Jin v. Holder BIA Nelson, IJ A099 328 460 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 NOTAT
Summary: 12-3159 Jin v. Holder BIA Nelson, IJ A099 328 460 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 NOTATI..
More
12-3159
Jin v. Holder
BIA
Nelson, IJ
A099 328 460
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 6th day of January, two thousand fourteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 YINGCHUN JIN,
14 Petitioner,
15
16 v. 12-3159
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Yingchun Jin, Pro Se, Flushing, New
24 York
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Greg D. Mack,
28 Senior Litigation Counsel; Shahrzad
29 Baghai, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Yingchun Jin, a native and citizen of the People’s
10 Republic of China, seeks review of a July 13, 2012, decision
11 of the BIA affirming the February 3, 2011, decision of
12 Immigration Judge (“IJ”) Barbara A. Nelson, which denied her
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re
15 Yingchun Jin, No. A099 328 460 (B.I.A. July 13, 2012), aff’g
16 No. A099 328 460 (Immig. Ct. N.Y. City Feb. 3, 2011). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 both the IJ’s and the BIA’s opinions. See Yun-Zui Guan v.
21 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
22 standards of review are well-established. See 8 U.S.C.
23 § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
562 F.3d
24 510, 513 (2d Cir. 2009).
2
1 For applications such as Jin’s, governed by the
2 amendments made to the Immigration and Nationality Act by
3 the REAL ID Act of 2005, the agency may, “[c]onsidering the
4 totality of the circumstances,” base a credibility finding
5 on the plausibility of an applicant’s account, as well as
6 inconsistencies in her statements, without regard to whether
7 they go “to the heart of the applicant’s claim.” 8 U.S.C.
8 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see Xiu Xia Lin v.
9 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).
10 Furthermore, for purposes of a credibility determination,
11 “[a]n inconsistency and an omission are . . . functionally
12 equivalent.” Xiu Xia
Lin, 534 F.3d at 166. We “defer [ ]
13 to an IJ’s credibility determination unless, from the
14 totality of the circumstances, it is plain that no
15 reasonable fact-finder could make such an adverse
16 credibility ruling.”
Id. at 167. In this case, the agency
17 reasonably based its adverse credibility finding on the
18 discrepancies between Jin’s asylum application and
19 testimony, the discrepancies between her testimony and the
20 evidence proffered by her sister, the negative demeanor of
21 Jin and her sister, and a failure to provide corroborating
22 evidence.
3
1 Jin asserted in her asylum application that her family
2 in China had not experienced any harm, but during her
3 testimony, she stated that the police had beaten her husband
4 in August 2009 due to her participation in the Chinese
5 Democracy and Justice Party (“CDJP”). She also testified
6 that she had written two articles in Chinese criticizing the
7 Chinese government for the CDJP and that she had shared her
8 hand-written drafts with her sister and had taken her sister
9 to the CDJP office in Flushing to see the final versions
10 posted on the party website. However, her sister testified
11 that she had learned of Jin’s articles and CDJP membership
12 when her roommate showed her the party website at home and
13 she saw Jin’s photograph and two articles written in Korean.
14 These inconsistencies regarding the basis for Jin’s fear of
15 persecution provide substantial evidence for the agency’s
16 adverse credibility determination. See Xiu Xia Lin, 534
17 F.3d at 166, 167.
18 The adverse credibility determination is bolstered by
19 the IJ’s observations regarding Jin and her sister’s
20 demeanor and Jin’s lack of corroborating evidence. We
21 accord particular deference to the trier of fact’s
22 assessment of demeanor, as she was in the best position to
4
1 observe their manner while testifying. See Tu Lin v.
2 Gonzales, 446 F.3d 395, 400 (2d Cir. 2006). And, Jin’s
3 failure to provide reasonably available evidence to
4 corroborate her claim prevented her from rehabilitating the
5 testimony that had been called into question. See Biao Yang
6 v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007). Furthermore,
7 the agency reasonably declined to credit Jin’s explanations
8 for failing to provide corroborating evidence. See Majidi
9 v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005).
10 Given the discrepancies, negative demeanor, and lack of
11 corroboration, the totality of the circumstances supports
12 the agency’s credibility determination. See 8 U.S.C.
13 § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 167. As all
14 of Jin’s claims share the same factual basis, the adverse
15 credibility finding necessarily precludes success on asylum,
16 withholding of removal, and CAT relief. See Paul v.
17 Gonzales,
444 F.3d 148, 156 (2d Cir. 2006).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
23 oral argument in this petition is DENIED in accordance with
5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
6
