Lin Jian v. Holder

320 F. App'x 101
CourtCourt of Appeals for the Second Circuit
DecidedApril 10, 2009
DocketNo. 08-5645-ag
StatusPublished

This text of 320 F. App'x 101 (Lin Jian v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lin Jian v. Holder, 320 F. App'x 101 (2d Cir. 2009).

Opinion

SUMMARY ORDER

Petitioners Lin Jian and Lin Xiu Fang, citizens of China, seek review of an October 29, 2008 order of the Board of Immigration Appeals (“BIA”) affirming Immigration Judge (“IJ”) Steven R. Abrams’s January 31, 2007 decision denying their applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Lin Jian, Nos. A98 374 979/982 (B.I.A. Oct. 29, 2008), aff'g Nos. A98 374 979/982 (Immig. Ct. N.Y. City Jan. 31, 2007). We assume [103]*103the parties’ familiarity with the underlying facts and procedural history of the case.

Where, as here, the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions for the sake of completeness if doing so does not affect the Court’s ultimate conclusion. See Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008).

I. Asylum

We find no error in the agency’s adverse credibility determination. For asylum applications governed by the amendments made to the Immigration and Nationality Act (“INA”) by the REAL ID Act of 2005, the agency may base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also In re J-Y-C-24 I. & N. Dec. 260, 265 (B.I.A.2007). This Court “defer[s] ... to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).

Analyzed under the REAL ID Act, the agency’s adverse credibility determination is supported by substantial evidence in the record. The IJ properly relied on the petitioners’ inconsistent testimony regarding the circumstances surrounding the photographs of the petitioners that were allegedly taken in Wisconsin. As the IJ noted, Fang had testified that her photograph was taken by a friend when Fang had visited Wisconsin by herself, while Jian had testified that he took the photograph of Fang when they visited Wisconsin together. The IJ also correctly noted that, despite their claims that the photographs were taken at different times, the backgrounds in the two photographs were identical. Under the REAL ID Act, this was sufficient to support the IJ’s adverse credibility finding. See id. at 167.

We also find no error in the IJ’s conclusion that Fang’s testimony that her father declined to take her to receive medical attention after she was allegedly beaten by village cadres was implausible. See Ying Li v. Bureau of Citizenship & Immigration Servs., 529 F.3d 79, 82 (2d Cir.2008). Further, the IJ correctly noted that, when asked to explain this implausibility, Fang had responded first that it was her father who sought to “save face” by not seeking medical treatment and then that it was her idea. Accordingly, nothing would compel a reasonable fact-finder to accept Fang’s explanation. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).

Further, the IJ supported his adverse credibility determination with observations of the petitioners’ demeanor. This Court gives particular deference to an IJ’s assessment of an applicant’s demeanor. See id. at 81 n. 1. Here, the IJ supported his demeanor finding by pointing to specific examples in the record, noting that the petitioners were “evasive” with respect to dates, times, and places, and that they became “flustered” when asked questions outside of their statements in support of their asylum applications. The IJ pointed out that Jian had admitted to having “memorized” a date incorrectly, and that the petitioners appeared to be “reciting by rote” from their statements.

[104]*104II. Withholding of Removal and CAT Relief

Because the only evidence of a threat to the petitioners’ lives or freedom depended upon their credibility, the adverse credibility finding in this case necessary precludes success on their claims for asylum and withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Wu Biao Chen v. INS, 344 F.3d 272, 276 (2d Cir.2003). Finally, because the petitioners offered no independent evidence that they would be tortured if returned to China, the adverse credibility determination in this case also precludes success on their claims for CAT relief. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005); cf. Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir.2004).

III. Frivolous Asylum Application

We find no error in the agency’s conclusion that the petitioners filed frivolous asylum applications. If, after advising an alien of the consequences of filing a frivolous asylum application, the Attorney General determines that an alien has knowingly filed such an application, the alien shall be “permanently ineligible for any benefits” under the immigration laws. 8 U.S.C. § 1158(d)(4)(A), (d)(6). An asylum application is considered frivolous “if any of its material elements is deliberately fabricated. Such finding shall only be made if the [IJ or BIA] is satisfied that the applicant, during the course of the proceedings, has had sufficient opportunity to account for any discrepancies or implausible aspects of the claim.” 8 C.F.R. § 1208.20.

Because of the “serious consequences of a frivolousness finding, the regulation provides a number of procedural safeguards.” In re Y-L-, 24 I. & N. Dec. 151, 155 (B.I.A.2007).

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Related

Biao Yang v. Gonzales
496 F.3d 268 (Second Circuit, 2007)
Corovic v. Mukasey
519 F.3d 90 (Second Circuit, 2008)
Xiu Xia Lin v. Mukasey
534 F.3d 162 (Second Circuit, 2008)
Y-L
24 I. & N. Dec. 151 (Board of Immigration Appeals, 2007)
J-Y-C
24 I. & N. Dec. 260 (Board of Immigration Appeals, 2007)

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Bluebook (online)
320 F. App'x 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lin-jian-v-holder-ca2-2009.