20-1738 Lin v. Garland BIA Poczter, IJ A208 597 651
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.
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 17th day of October, two thousand twenty-two.
PRESENT: JON O. NEWMAN, DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
CONGHE LIN, Petitioner,
v. 20-1738 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Joan Xie, Esq., New York, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; Carl H. McIntyre, Jr., Assistant Director; Paul Fiorino, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
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 Conghe Lin, a native and citizen of the
People’s Republic of China, seeks review of a May 26, 2020,
decision of the BIA affirming an April 13, 2018, 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 Conghe Lin, No.
A208 597 651 (B.I.A. May 26, 2020), aff’g No. A208 597 651
(Immig. Ct. N.Y. City Apr. 13, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
We have reviewed both the IJ’s and the BIA’s opinions.
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
Cir. 2006). We review an adverse credibility determination
for substantial evidence, see Hong Fei Gao v. Sessions, 891
F.3d 67, 76 (2d Cir. 2018), and “the administrative findings
of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary,” 8 U.S.C.
2 § 1252(b)(4)(B). “Considering the totality of the
circumstances, and all relevant factors, a trier of fact may
base a credibility determination on the demeanor, candor, or
responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the
consistency between the applicant’s or witness’s written and
oral statements (whenever made and whether or not under oath,
and considering the circumstances under which the statements
were made), the internal consistency of each such statement
. . . , and any inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim, or any
other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
defer . . . 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); accord Hong Fei Gao, 891 F.3d at 76. Substantial
evidence supports the agency’s determination that Lin was not
credible as to his claims that police in China detained and
beat him for attending an unregistered church and that he
practices Christianity in the United States.
3 The agency reasonably relied in part on an inconsistency
between Lin’s statement at his credible fear interview that
police pushed his mother to the ground while looking for him
after he failed to report as required and his testimony that
only his wife and children were at home at the time. See
8 U.S.C. § 1158(b)(1)(B)(iii). The agency did not err in
relying on the record of Lin’s credible fear interview because
the interview record bears the hallmarks of reliability: it
was conducted with an interpreter, it is memorialized in a
typewritten question-and-answer format, the questions posed
were designed to elicit details of his asylum claim, and Lin’s
responses indicated that he understood the questions posed.
See Ming Zhang v. Holder, 585 F.3d 715, 724–25 (2d Cir. 2009).
Lin’s discussion of his wife’s lack of education and her
presence during the incident when questioned about the
discrepancy did not resolve the inconsistency in his
statements. See Majidi v. Gonzales, 430 F.3d 77, 80 (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.” (quotation marks
omitted)). The agency also reasonably concluded that the
4 letter Lin’s wife wrote in support of Lin’s immigration
application undermined Lin’s statement that the police pushed
his mother. Although the letter mentioned that the police
had visited their home, it made no mention of Lin’s mother
– let alone her being pushed – which was significant given
Lin’s testimony that he learned about the incident from his
wife. See 8 U.S.C. § 1158(b)(1)(B)(iii); Hong Fei Gao, 891
F.3d 78–79 (providing that the agency may rely on the omission
of facts a “witness would reasonably have been expected to
disclose”).
The agency also did not err in finding that (1) Lin made
inconsistent statements regarding his church attendance in
the United States as he first stated that he had not attended
services in this country before claiming to have attended
weekly in New York, and (2) Lin exaggerated the frequency of
his church attendance because he initially failed to reveal
his much less frequent attendance during the year he lived in
Indiana. See 8 U.S.C. § 1158(b)(1)(B)(iii); Siewe v.
Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007) (“The
speculation that inheres in inference is not ‘bald’ if the
inference is made available to the factfinder by record facts,
or even a single fact, viewed in the light of common sense
5 and ordinary experience. So long as an inferential leap is
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20-1738 Lin v. Garland BIA Poczter, IJ A208 597 651
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.
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 17th day of October, two thousand twenty-two.
PRESENT: JON O. NEWMAN, DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
CONGHE LIN, Petitioner,
v. 20-1738 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Joan Xie, Esq., New York, NY.
FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; Carl H. McIntyre, Jr., Assistant Director; Paul Fiorino, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
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 Conghe Lin, a native and citizen of the
People’s Republic of China, seeks review of a May 26, 2020,
decision of the BIA affirming an April 13, 2018, 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 Conghe Lin, No.
A208 597 651 (B.I.A. May 26, 2020), aff’g No. A208 597 651
(Immig. Ct. N.Y. City Apr. 13, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
We have reviewed both the IJ’s and the BIA’s opinions.
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
Cir. 2006). We review an adverse credibility determination
for substantial evidence, see Hong Fei Gao v. Sessions, 891
F.3d 67, 76 (2d Cir. 2018), and “the administrative findings
of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary,” 8 U.S.C.
2 § 1252(b)(4)(B). “Considering the totality of the
circumstances, and all relevant factors, a trier of fact may
base a credibility determination on the demeanor, candor, or
responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the
consistency between the applicant’s or witness’s written and
oral statements (whenever made and whether or not under oath,
and considering the circumstances under which the statements
were made), the internal consistency of each such statement
. . . , and any inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim, or any
other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We
defer . . . 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); accord Hong Fei Gao, 891 F.3d at 76. Substantial
evidence supports the agency’s determination that Lin was not
credible as to his claims that police in China detained and
beat him for attending an unregistered church and that he
practices Christianity in the United States.
3 The agency reasonably relied in part on an inconsistency
between Lin’s statement at his credible fear interview that
police pushed his mother to the ground while looking for him
after he failed to report as required and his testimony that
only his wife and children were at home at the time. See
8 U.S.C. § 1158(b)(1)(B)(iii). The agency did not err in
relying on the record of Lin’s credible fear interview because
the interview record bears the hallmarks of reliability: it
was conducted with an interpreter, it is memorialized in a
typewritten question-and-answer format, the questions posed
were designed to elicit details of his asylum claim, and Lin’s
responses indicated that he understood the questions posed.
See Ming Zhang v. Holder, 585 F.3d 715, 724–25 (2d Cir. 2009).
Lin’s discussion of his wife’s lack of education and her
presence during the incident when questioned about the
discrepancy did not resolve the inconsistency in his
statements. See Majidi v. Gonzales, 430 F.3d 77, 80 (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.” (quotation marks
omitted)). The agency also reasonably concluded that the
4 letter Lin’s wife wrote in support of Lin’s immigration
application undermined Lin’s statement that the police pushed
his mother. Although the letter mentioned that the police
had visited their home, it made no mention of Lin’s mother
– let alone her being pushed – which was significant given
Lin’s testimony that he learned about the incident from his
wife. See 8 U.S.C. § 1158(b)(1)(B)(iii); Hong Fei Gao, 891
F.3d 78–79 (providing that the agency may rely on the omission
of facts a “witness would reasonably have been expected to
disclose”).
The agency also did not err in finding that (1) Lin made
inconsistent statements regarding his church attendance in
the United States as he first stated that he had not attended
services in this country before claiming to have attended
weekly in New York, and (2) Lin exaggerated the frequency of
his church attendance because he initially failed to reveal
his much less frequent attendance during the year he lived in
Indiana. See 8 U.S.C. § 1158(b)(1)(B)(iii); Siewe v.
Gonzales, 480 F.3d 160, 168–69 (2d Cir. 2007) (“The
speculation that inheres in inference is not ‘bald’ if the
inference is made available to the factfinder by record facts,
or even a single fact, viewed in the light of common sense
5 and ordinary experience. So long as an inferential leap is
tethered to the evidentiary record, we will accord deference
to the finding.”). The agency was not compelled to credit
Lin’s explanation that he thought he was being asked whether
he had ever attended an underground church in the United
States because that was not the question asked and he admitted
that he was unaware of any such churches in this country.
See Majidi, 430 F.3d at 80.
Having questioned Lin’s credibility, the agency
reasonably relied on his failure to rehabilitate his
testimony with reliable corroborating evidence. See Biao
Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An
applicant’s failure to corroborate his or her testimony may
bear on credibility, because the absence of corroboration in
general makes an applicant unable to rehabilitate testimony
that has already been called into question.”). As the agency
found, aside from his wife’s letter, which was not reliable
given the omission discussed above, Lin had no evidence
corroborating the alleged events in China. See Y.C. v.
Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the
agency’s determination of the weight afforded to an alien’s
documentary evidence.”). Further, a March 2018 letter from
6 a church in New York, stating that Lin had attended since
November 2015, did not rehabilitate his claim as it suffered
from the same flaw as his testimony by failing to account for
the year he lived in Indiana and attended church infrequently.
See 8 U.S.C. § 1158(b)(1)(B)(iii); Y.C., 741 F.3d at 334.
The inconsistencies and lack of corroboration constitute
substantial evidence for the adverse credibility
determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 167; see also Likai Gao v. Barr, 968 F.3d
137, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency
might preclude an alien from showing that an IJ was compelled
to find him credible. Multiple inconsistencies would so
preclude even more forcefully.”). The adverse credibility
determination, which relates to both past events and Lin’s
practice of Christianity, is dispositive of asylum,
withholding of removal, and CAT relief because all three
claims are based on the same factual predicate. See Paul v.
Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006). Accordingly,
we do not reach the agency’s alternative finding that Lin
failed to establish a well-founded fear of persecution on
account of his religious practice in the United States. See
INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule
7 courts and agencies are not required to make findings on
issues the decision of which is unnecessary to the results
they reach.”).*
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
* Contrary to the Government’s waiver arguments, Lin’s challenge to the adverse credibility determination necessarily challenges the agency’s denial of CAT relief on credibility grounds, and Lin’s failure to challenge the agency’s alternative burden finding is not dispositive of asylum and withholding of removal given that the burden finding did not reach Lin’s past persecution claim.