Filed: Mar. 27, 2018
Latest Update: Mar. 03, 2020
Summary: 16-2670 Lin v. Sessions BIA Loprest, IJ A205 217 368 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: 16-2670 Lin v. Sessions BIA Loprest, IJ A205 217 368 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..
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16-2670
Lin v. Sessions
BIA
Loprest, IJ
A205 217 368
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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
27th day of March, two thousand eighteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
WEN TAO LIN,
Petitioner,
v. 16-2670
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Mona Liza F. Lao, Esq., New York,
New York.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Shelley R. Goad,
Assistant Director; Julia J. Tyler,
Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Wen Tao Lin, a native and citizen of the People’s
Republic of China, seeks review of a July 13, 2016 decision of
the BIA affirming a June 10, 2015 decision of an Immigration
Judge (“IJ”) denying Lin’s application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Wen Tao Lin, No. A205 217 368 (B.I.A. July 13,
2016), aff’g No. A205-217-368 (Immig. Ct. N.Y.C. June 10, 2015).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed both
the BIA’s and IJ’s decisions. See Yun-Zui Guan v. Gonzales,
432 F.3d 391, 394 (2d Cir. 2005). The agency denied relief on
three grounds: Lin’s asylum application was time barred; Lin
was not credible; and Lin did not independently establish that
Catholics in his home province of Fujian are persecuted. Lin
2
does not challenge the well-founded fear determination, and the
time-bar ruling was largely based on Lin’s lack of credibility.
Thus, we reach only the adverse credibility determination. See
Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005)
(stating that issues not sufficiently argued in opening brief
are deemed waived).
We review the agency’s adverse credibility determination
for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Xiu
Xia Lin v. Mukasey, 534 F.3d 162, 165–66 (2d Cir. 2008). The
agency may, “[c]onsidering the totality of the circumstances,”
base a credibility finding on an asylum applicant’s “demeanor,
candor, or responsiveness,” inconsistencies between an
applicant’s testimony and his witness’s testimony, and
discrepancies between an applicant’s testimony and asylum
application, “without regard to whether” those inconsistencies
go “to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); see also Xiu Xia Lin v.
Mukasey, 534 F.3d
at 163-64. “We defer . . . to an IJ’s credibility determination
unless . . . it is plain that no reasonable fact-finder could
make such an adverse credibility ruling.” Xiu Xia Lin v.
Mukasey, 534 F.3d at 167.
Substantial evidence here supports the adverse credibility
3
determination, which was based on several discrepancies between
Lin’s testimony, asylum application, and his witness’s
testimony, as well as Lin’s demeanor on cross-examination and
lack of candor regarding a 2005 U.S. visa application. Lin
challenges only two of the agency’s findings. As discussed
below, the two challenged inconsistencies are supported by the
record, and, in any event, the unchallenged findings stand as
valid bases for the adverse credibility ruling. See Shunfu Li
v. Mukasey, 529 F.3d 141, 146–47 (2d Cir. 2008) (holding that
petitioner waived challenge to grounds for adverse credibility
ruling that were not raised in brief, which independently
supported credibility determination).
First, the agency reasonably relied on a discrepancy
between Lin’s testimony and application regarding an injury he
sustained during his April 2011 detention. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d at 167
(“[A]n IJ may rely on any inconsistency or omission in making
an adverse credibility determination as long as the totality
of the circumstances establishes that an asylum applicant is
not credible.” (emphasis in original) (internal quotation marks
omitted)). Lin’s application specified that after being
beaten in detention, his mouth was “broken and bleeding.”
4
Certified Administrative Record (“CAR”) at 238. But Lin
omitted that information during his testimony. When
confronted with this discrepancy, Lin replied that the injury
had healed by the end of his detention. A reasonable
adjudicator would not have been compelled to accept this
explanation, as Lin initially thought the injury substantial
enough to include it in his application. See Majidi v.
Gonzales, 430 F.3d 77, 81 (2d Cir. 2005) (“A petitioner must
do more than offer a plausible explanation for his inconsistent
statements to secure relief; he must demonstrate that a
reasonable fact-finder would be compelled to credit his
testimony.” (internal quotation marks omitted)).
Second, Lin challenges the IJ’s reliance on two
inconsistencies between his and his witness’s descriptions of
the Good Friday service at the church he attends in the United
States. Lin testified that the Good Friday service was held
indoors and that the church looked as it normally did. His
witness, a vicar at the church, however, testified that part
of the Good Friday service—the Stations of the Cross—involved
going outside the church and then back inside and that, on Good
Friday, the cross inside the church was covered in a purple
cloth. Lin argues that there is no inconsistency because the
5
Stations of the Cross is separate from the Good Friday mass,
and that he was referencing the latter.1 Lin also argues that,
as a layperson, he should not be expected to identify the
religious significance of church decorations such as the purple
cloth. These arguments fail because the agency was not
required to accept Lin’s explanation for not identifying the
outdoor nature of part of the Good Friday service. See Xiu Xia
Lin v. Mukasey, 534 F.3d at 167. Further, Lin was not asked
about the religious significance of the purple cloth; he was
merely asked whether he noticed any changes in the church’s
decorations. These discrepancies go to whether Lin attended
church as he claimed, and the resulting adverse credibility
determination thus did not rely upon any lack of doctrinal
knowledge.
Lin does not challenge the agency’s adverse credibility
findings as to the date he was terminated from his job in China,
his failure to disclose a prior attempt to come to the United
States, or his demeanor during his hearing testimony.
Considered cumulatively, the discrepancies identified by the
1 We assume that Lin used “mass” to reference the Celebration of the Lord’s Passion conducted in Catholic churches
on Good Friday because mass is not offered in Catholic churches on that day. See Eighteen Questions on the Paschal
Triduum, United States Conference of Catholic Bishops, http://www.usccb.org/prayer-and-worship/
liturgical-year/triduum/questions-and-answers.cfm (last visited Feb. 27, 2018). The point does not affect our review.
6
agency, both challenged and not, provide substantial evidence
for the adverse credibility determination. See 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d at 167.
Because Lin’s asylum, withholding of removal, and CAT claims
were all based on the same factual predicate, this ruling is
dispositive as to all relief. See Paul v. Gonzales,
444 F.3d
148, 156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
7
