Mingshun Jin v. Sessions

706 F. App'x 11
CourtCourt of Appeals for the Second Circuit
DecidedDecember 1, 2017
Docket16-1987
StatusUnpublished

This text of 706 F. App'x 11 (Mingshun Jin v. Sessions) 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
Mingshun Jin v. Sessions, 706 F. App'x 11 (2d Cir. 2017).

Opinion

SUMMARY ORDER

Petitioner Mingshun Jin, a native and citizen of the People’s Republic of China, seeks review of a June 14,2016, decision of the BIA, affirming a February 23, 2010, decision of an Immigration Judge (“U”) denying Jin’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Mingshun Jin, No. A093 458 799 (B.I.A. June 14, 2016), aff'g No. A093 458 799 (Immig. Ct. N.Y. City Feb. 23, 2010). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we have reviewed the IJ’s decision as supplemented and modified by the BIA and thus review the BIA’s denial of Jin’s motion to remand, but not the IJ’s discretionary denial of asylum, which the BIA did not reach. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008); Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005).

I. Adverse Credibility Determination

The governing REAL ID Act credibility standard provides that the agency must “[c]onsider[ ] the totality of the circumstances,” and may base a credibility finding on an applicant’s “demeanor, candor, or responsiveness,” the plausibility of her account, and inconsistencies in her or her witness’s statements, “without regard to whether” they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 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, 534 F.3d at 167. For the reasons that follow, we conclude that substantial evidence supports the agency’s finding that Jin was not credible.

First, the agency reasonably relied on Jin’s omission from her application of the main points to which she testified. See id. at 166-67 & n.3 (“An inconsistency and an omission are ... functionally equivalent” for credibility purposes.). Jin does not dispute that she omitted that she was detained and interrogated in China for harboring a North Korean refugee or that the police visited her son in August 2008 and husband in February 2009 regarding her pro-democracy activities in the United States.

The credibility determination is bolstered by the IJ’s demeanor finding, to which we defer. See 8 U.S.C. § 1158(b)(1)(B)(iii); Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d Cir. 2005). Notwithstanding Jin’s argument to the contrary, the record supports the IJ’s finding that there were long pauses and nonre-sponsive answers during Jin’s testimony about the omissions from her application. Moreover, we find the demeanor finding particularly reliable because it is directly linked to inconsistencies in the record. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be still more confident in our review of observations about an applicant’s demeanor where, as here, they are supported by specific examples of inconsistent testimony.”).

The agency also reasonably based the credibility determination on Jin’s vague testimony concerning the pro-democracy organization she joined in the United States (the Chinese Democracy and Justice Party (“CDJP”)). See Shunfu Li v. Mukasey, 529 F.3d 141, 147 (2d Cir. 2008). Although “a finding of testimonial vagueness cannot, without more, support an adverse credibility determination unless government counsel or the IJ first attempts to solicit moré detail from the alien,” id., this requirement has been satisfied. After testifying that the CDJP advocates violence in certain circumstances, Jin was unable to identify those circumstances despite repeated questioning from both the Government and IJ.

Finally, the agency reasonably found Jin’s corroborating evidence insufficient to rehabilitate her credibility. 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.”). Jin did not submit any corroboration from her son or husband. While Jin takes issue with the IJ’s finding that she did not sufficiently corroborate that she belonged to the CDJP by offering a statement from a fellow member or sufficiently corroborate that her internet articles would be available to the Chinese government, the weight accorded to an applicant’s evidence “lie[s] largely within the discretion of the IJ.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (internal quotation marks omitted). The IJ therefore did not err in according minimal weight to Jin’s articles and unauthenticated CDJP membership card and letter. See id.; Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148 (2d Cir. 2007).

Given the agency’s foregoing omission, demeanor, testimonial vagueness, and corroboration findings, the totality of the circumstances supports the adverse credibility determination. See Xiu Xia Lin, 534 F.3d at 165-66. A reasonable adjudicator would not be compelled to conclude otherwise. Id. at 167. The credibility finding is dispositive of asylum, withholding of removal, and CAT relief because all three claims are based on the same discredited factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

II. Motion to Remand

We review the BIA’s denial of remand for abuse of discretion. Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005). To obtain remand based on ineffective assistance of counsel, a movant must establish that “counsel’s performance ... impinged upon the fundamental fairness of the hearing.” Jian Yun Zheng v. U.S.

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