17-875 Lin v. Barr BIA Lamb, IJ A205 611 039 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 8th day of April, two thousand nineteen. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 JOSÉ A. CABRANES, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 DONG LIN, 14 Petitioner, 15 16 v. 17-875 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Michael E. Piston, Piston & 24 Carpenter, P.C., New York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Anthony P. 28 Nicastro, Assistant Director; 29 Tracey N. McDonald, Trial 30 Attorney, Office of Immigration 31 Litigation, United States 32 Department of Justice, Washington, 33 DC. 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 Petitioner Dong Lin, a native and citizen of the People’s
6 Republic of China, seeks review of a February 28, 2017,
7 decision of the BIA affirming a June 8, 2016, decision of an
8 Immigration Judge (“IJ”) denying Lin’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Dong Lin, No. A
11 205 611 039 (B.I.A. Feb. 28, 2017), aff’g No. A 205 611 039
12 (Immig. Ct. N.Y. City June 8, 2016). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v.
17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
18 standards of review are well established. See 8 U.S.C.
19 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
20 (2d Cir. 2018) (reviewing adverse credibility determination
21 under a substantial evidence standard); Gjerjaj v. Holder, 2 1 691 F.3d 288, 292 (2d Cir. 2012) (reviewing constitutional
2 claims de novo).
3 The agency denied Lin’s application, finding that he was
4 not credible given misrepresentations that undermined his
5 alleged practice of Christianity. The governing REAL ID Act
6 credibility standard provides as follows:
7 Considering the totality of the circumstances, and 8 all relevant factors, a trier of fact may base a 9 credibility determination on the demeanor, candor, 10 or responsiveness of the applicant or witness, . . 11 . the consistency between the applicant’s or 12 witness’s written and oral statements . . . , the 13 internal consistency of each such statement, the 14 consistency of such statements with other evidence 15 of record . . . , and any inaccuracies or falsehoods 16 in such statements, . . . or any other relevant 17 factor. 18 19 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
20 credibility determination unless . . . it is plain that no
21 reasonable fact-finder could make such an adverse credibility
22 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
23 2008). Substantial evidence supports the agency’s adverse
24 credibility determination.
25 Lin’s inconsistent testimony regarding whether he lived
26 in New York or Florida provides substantial evidence for the
27 adverse credibility determination because it called into 3 1 question the main premise of his asylum claim, that he was a
2 practicing Christian. See 8 U.S.C. § 1158(b)(1)(B)(iii);
3 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007). The
4 agency was not required to credit Lin’s explanation that he
5 lived in New York but worked in Florida, particularly because
6 Lin’s own testimony was that he only returned to New York
7 every two to three months while working in Florida. See
8 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“A
9 petitioner must do more than offer a plausible explanation
10 for his inconsistent statements to secure relief; he must
11 demonstrate that a reasonable fact-finder would be compelled
12 to credit his testimony.” (quotation marks omitted)).
13 Lin’s testimony that he worked in Florida and came to
14 New York every two or three months was inconsistent with his
15 testimony that he attended church in New York twice a month.
16 Lin argues that the BIA engaged in improper fact finding by
17 noting this inconsistency in the first instance and that he
18 was never given an opportunity to explain this inconsistency.
19 Although the IJ did not explicitly state that Lin’s testimony
20 that he attended church twice a month was inconsistent with
21 his testimony that he only returned to New York every two to 4 1 three months, the IJ concluded that Lin’s testimony that he
2 worked in Florida undermined his claim that he was attending
3 church in New York. The BIA did not engage in improper fact
4 finding in evaluating the record to determine whether there
5 was any error in the IJ’s finding. See 8 C.F.R.
6 § 1003.1(d)(3) (providing that BIA reviews IJ’s findings of
7 fact only for clear error).
8 Furthermore, because the inconsistency was “plainly
9 obvious,” the agency was not required to call it to Lin’s
10 attention and solicit an explanation. Cf. Ming Shi Xue v.
11 BIA, 439 F.3d 111, 121 (2d Cir. 2006) (“[W]here the perceived
12 incongruities in an asylum applicant’s testimony are not
13 plainly obvious, an IJ cannot rely on them to support an
14 adverse credibility ruling without first identifying the
15 alleged inconsistencies for the applicant and giving the
16 applicant an opportunity to address them.”). Although Lin
17 provided flight details for trips between Florida and New
18 York, the evidence does not show he was active in the church
19 because he was in New York for only short periods.
20 Additionally, the record does not reflect that the agency
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17-875 Lin v. Barr BIA Lamb, IJ A205 611 039 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 8th day of April, two thousand nineteen. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 JOSÉ A. CABRANES, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 DONG LIN, 14 Petitioner, 15 16 v. 17-875 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Michael E. Piston, Piston & 24 Carpenter, P.C., New York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Anthony P. 28 Nicastro, Assistant Director; 29 Tracey N. McDonald, Trial 30 Attorney, Office of Immigration 31 Litigation, United States 32 Department of Justice, Washington, 33 DC. 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 Petitioner Dong Lin, a native and citizen of the People’s
6 Republic of China, seeks review of a February 28, 2017,
7 decision of the BIA affirming a June 8, 2016, decision of an
8 Immigration Judge (“IJ”) denying Lin’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Dong Lin, No. A
11 205 611 039 (B.I.A. Feb. 28, 2017), aff’g No. A 205 611 039
12 (Immig. Ct. N.Y. City June 8, 2016). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 both the BIA’s and IJ’s decisions. See Yun-Zui Guan v.
17 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
18 standards of review are well established. See 8 U.S.C.
19 § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
20 (2d Cir. 2018) (reviewing adverse credibility determination
21 under a substantial evidence standard); Gjerjaj v. Holder, 2 1 691 F.3d 288, 292 (2d Cir. 2012) (reviewing constitutional
2 claims de novo).
3 The agency denied Lin’s application, finding that he was
4 not credible given misrepresentations that undermined his
5 alleged practice of Christianity. The governing REAL ID Act
6 credibility standard provides as follows:
7 Considering the totality of the circumstances, and 8 all relevant factors, a trier of fact may base a 9 credibility determination on the demeanor, candor, 10 or responsiveness of the applicant or witness, . . 11 . the consistency between the applicant’s or 12 witness’s written and oral statements . . . , the 13 internal consistency of each such statement, the 14 consistency of such statements with other evidence 15 of record . . . , and any inaccuracies or falsehoods 16 in such statements, . . . or any other relevant 17 factor. 18 19 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
20 credibility determination unless . . . it is plain that no
21 reasonable fact-finder could make such an adverse credibility
22 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
23 2008). Substantial evidence supports the agency’s adverse
24 credibility determination.
25 Lin’s inconsistent testimony regarding whether he lived
26 in New York or Florida provides substantial evidence for the
27 adverse credibility determination because it called into 3 1 question the main premise of his asylum claim, that he was a
2 practicing Christian. See 8 U.S.C. § 1158(b)(1)(B)(iii);
3 Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007). The
4 agency was not required to credit Lin’s explanation that he
5 lived in New York but worked in Florida, particularly because
6 Lin’s own testimony was that he only returned to New York
7 every two to three months while working in Florida. See
8 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (“A
9 petitioner must do more than offer a plausible explanation
10 for his inconsistent statements to secure relief; he must
11 demonstrate that a reasonable fact-finder would be compelled
12 to credit his testimony.” (quotation marks omitted)).
13 Lin’s testimony that he worked in Florida and came to
14 New York every two or three months was inconsistent with his
15 testimony that he attended church in New York twice a month.
16 Lin argues that the BIA engaged in improper fact finding by
17 noting this inconsistency in the first instance and that he
18 was never given an opportunity to explain this inconsistency.
19 Although the IJ did not explicitly state that Lin’s testimony
20 that he attended church twice a month was inconsistent with
21 his testimony that he only returned to New York every two to 4 1 three months, the IJ concluded that Lin’s testimony that he
2 worked in Florida undermined his claim that he was attending
3 church in New York. The BIA did not engage in improper fact
4 finding in evaluating the record to determine whether there
5 was any error in the IJ’s finding. See 8 C.F.R.
6 § 1003.1(d)(3) (providing that BIA reviews IJ’s findings of
7 fact only for clear error).
8 Furthermore, because the inconsistency was “plainly
9 obvious,” the agency was not required to call it to Lin’s
10 attention and solicit an explanation. Cf. Ming Shi Xue v.
11 BIA, 439 F.3d 111, 121 (2d Cir. 2006) (“[W]here the perceived
12 incongruities in an asylum applicant’s testimony are not
13 plainly obvious, an IJ cannot rely on them to support an
14 adverse credibility ruling without first identifying the
15 alleged inconsistencies for the applicant and giving the
16 applicant an opportunity to address them.”). Although Lin
17 provided flight details for trips between Florida and New
18 York, the evidence does not show he was active in the church
19 because he was in New York for only short periods.
20 Additionally, the record does not reflect that the agency
21 failed to consider evidence that Lin became a public opponent 5 1 of the Chinese government in May 2012 and participated in a
2 public protest again in April 2013. The IJ acknowledged that
3 Lin’s name and photograph appeared in the media; however,
4 given the lack of credibility regarding his motivation for
5 those protests, there was no basis for finding a credible
6 claim that he would continue those activities in China. See
7 Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008)
8 (“[T]he agency is not required to “expressly parse or refute
9 on the record each individual argument or piece of evidence
10 offered.”). Furthermore, the BIA did not err in declining
11 to take administrative notice of the 2015 Department of State
12 Religious Freedom Report. Because Lin’s claim that he was
13 actively participating in a Christian church was not
14 credible, the report’s discussion of the treatment of
15 Christians was not relevant to the agency’s decision.
16 Lin’s inconsistent testimony regarding where he lived
17 and the frequency of his church attendance completely
18 undermines his credibility and provides substantial evidence
19 for the adverse credibility determination. See Xian Tuan Ye
20 v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006)
21 (holding that material inconsistency regarding basis of 6 1 asylum claim constitutes substantial evidence). Because
2 Lin’s claims were all based on the same factual predicate,
3 the adverse credibility determination is dispositive of
4 asylum, withholding of removal, and CAT relief. See Paul v.
5 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of removal
8 that the Court previously granted in this petition is VACATED,
9 and any pending motion for a stay of removal in this petition
10 is DISMISSED as moot. Any pending request for oral argument
11 in this petition is DENIED in accordance with Federal Rule of
12 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
13 34.1(b).
14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, 16 Clerk of Court