Filed: Aug. 09, 2019
Latest Update: Aug. 09, 2019
Summary: 17-3704 Jin v. Barr BIA Cassin, IJ A202 039 163/164/165 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
Summary: 17-3704 Jin v. Barr BIA Cassin, IJ A202 039 163/164/165 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 ..
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17-3704
Jin v. Barr
BIA
Cassin, IJ
A202 039 163/164/165
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 9th day of August, two thousand nineteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 RAYMOND J. LOHIER, JR.,
10 CHRISTOPHER F. DRONEY,
11 Circuit Judges.
12 _____________________________________
13
14 ZHENGLONG JIN, HONG ZHOU, XIAO
15 ZHEN JIN,
16
17 Petitioners,
18
19 v. 17-3704
20 NAC
21 WILLIAM P. BARR, UNITED STATES
22 ATTORNEY GENERAL,
23
24 Respondent.
25 _____________________________________
26
27 FOR PETITIONERS: Louis H. Klein, The Kasen Law
28 Firm, PLLC, Flushing, NY.
29
1 FOR RESPONDENT: Chad A. Readler, Acting Assistant
2 Attorney General; Mary Jane
3 Candaux, Assistant Director; Remi
4 da Rocha-Afodu, Trial Attorney,
5 Office of Immigration Litigation,
6 United States Department of
7 Justice, Washington, DC.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Zhenglong Jin and his wife Hong Zhou, natives and
14 citizens of China, and their minor child Xiao Zhen Jin, a
15 native of South Korea and citizen of China, seek review of an
16 October 16, 2017, decision of the BIA affirming a March 22,
17 2017, decision of an Immigration Judge (“IJ”) denying asylum,
18 withholding of removal, and relief under the Convention
19 Against Torture (“CAT”). In re Zhenglong Jin, Hong Zhou,
20 Xiao Zhen Jin, Nos. A 202 039 163/164/165 (B.I.A. Oct. 16,
21 2017), aff’g Nos. A 202 039 163/164/165 (Immig. Ct. N.Y. City
22 A.K. Marsh. 22, 2017). We assume the parties’ familiarity with the
23 underlying facts and procedural history in this case.
24 Jin’s counsel has submitted essentially the same brief
25 used for his BIA appeal, and contests only one finding
2
1 underlying the adverse credibility determination.
2 Accordingly, counsel has waived review of the following
3 determinations: (1) inconsistencies in Jin’s statements and
4 between his statements and those of his wife regarding the
5 location of Jin’s daughter when he was released from
6 detention, whether Jin has a brother in the United States,
7 and whether Jin and his wife received a fine receipt; and (2)
8 Jin’s failure to rehabilitate his testimony with reliable
9 corroborative evidence. See Yueqing Zhang v. Gonzales, 426
10 F.3d 540, 541 n.1 (2d Cir. 2005) (“Issues not sufficiently
11 argued in the briefs are considered waived and normally will
12 not be addressed on appeal.” (quoting Norton v. Sam’s Club,
13
145 F.3d 114, 117 (2d Cir. 1998))). The waiver is significant
14 because, as discussed below, these findings support the
15 adverse credibility determination in this case. See Shunfu
16 Li v. Mukasey,
529 F.3d 141, 146-47 (2d Cir. 2008).
17 Even absent waiver, we would deny the petition because
18 the adverse credibility determination is supported by
19 substantial evidence. See Hong Fei Gao v. Sessions,
891 F.3d
20 67, 76 (2d Cir. 2018) (reviewing adverse credibility
21 determination under substantial evidence standard).
3
1 “Considering the totality of the circumstances,” a factfinder
2 “may base a credibility determination on . . . the consistency
3 between the applicant’s . . . written and oral statements .
4 . . , the internal consistency of each such statement, [and]
5 the consistency of such statements with other evidence of
6 record.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to
7 an IJ’s credibility determination unless, from the totality
8 of the circumstances, it is plain that no reasonable fact-
9 finder could make such an adverse credibility ruling.” Xiu
10 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord
11 Hong Fei Gao, 891 F.3d at 76.
12 The agency reasonably relied on multiple inconsistencies
13 between Jin’s prior statements and his testimony and that of
14 his wife to support the adverse credibility determination.
15 See 8 U.S.C. § 1158(b)(1)(B)(iii). The record reflects
16 inconsistent statements about whether Jin missed any weekly
17 police check-ins, whether he told the police about trips to
18 South Korea, Turkey and Egypt, the location of his daughter
19 at the time of his release from detention, and whether he had
20 a brother living in the United States. The agency was not
21 compelled to accept the explanations provided by Jin and Zhou,
4
1 which largely amounted to claims of forgetfulness or
2 confusion. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.
3 2005) (“A petitioner must do more than offer a plausible
4 explanation for his inconsistent statements to secure relief;
5 he must demonstrate that a reasonable fact-finder would be
6 compelled to credit his testimony.” (internal quotation marks
7 omitted)).
8 Having questioned Jin’s credibility, the agency also
9 reasonably relied on his failure to rehabilitate his
10 testimony with reliable corroborating evidence. See Biao
11 Yang v. Gonzales,
496 F.3d 268, 273 (2d Cir. 2007) (“An
12 applicant’s failure to corroborate his or her testimony may
13 bear on credibility, because the absence of corroboration in
14 general makes an applicant unable to rehabilitate testimony
15 that has already been called into question.”). The agency
16 was not required to credit letters from Jin’s father and a
17 friend in China. See Y.C. v. Holder,
741 F.3d 324, 334 (2d
18 Cir. 2013) (holding that “[w]e defer to the agency’s
19 determination of the weight afforded to an alien’s
20 documentary evidence” and deferring to decision to afford
21 little weight to spouse’s letter because it was unsworn and
5
1 from an interested witness).
2 Although the IJ’s decision may have overstated
3 inconsistencies regarding the fine receipt and between Jin’s
4 and his wife’s testimony about Jin’s brother, given the
5 multiple inconsistencies identified above and the lack of
6 reliable corroboration, the adverse credibility determination
7 is supported by substantial evidence. See Xiu Xia Lin, 534
8 F.3d at 165-66. That determination is dispositive of asylum,
9 withholding of removal, and CAT relief because all three
10 claims are based on the same factual predicate. See Paul v.
11 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe,
16 Clerk of Court
6
