12-4318 Lin v. Holder BIA Christensen, IJ A200 921 074 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.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 2nd day of October, two thousand thirteen. 5 6 PRESENT: 7 8 ROBERT A. KATZMANN, 9 Chief Judge, 10 BARRINGTON D. PARKER, 11 REENA RAGGI, 12 Circuit Judges. 13 14 _______________________________________ 15 16 CHANG HUI LIN, 17 Petitioner, 18 19 v. 12-4318 20 NAC 21 ERIC H. HOLDER, JR., UNITED STATES 22 ATTORNEY GENERAL, 23 Respondent. 24 _______________________________________ 25 26 FOR PETITIONER: Gary J. Yerman, New York, New York. 27 28 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 29 Attorney General; David V. Bernal, 1 Assistant Director; Stuart S. 2 Nickum, Trial Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, D.C. 6 7 UPON DUE CONSIDERATION of this petition for review of a

8 Board of Immigration Appeals (“BIA”) decision, it is hereby

9 ORDERED, ADJUDGED, AND DECREED that the petition for review

10 is DENIED.

11 Petitioner Chang Hui Lin, a native and citizen of the

12 People’s Republic of China, seeks review of an October 4,

13 2012, decision of the BIA affirming the June 6, 2011,

14 decision of Immigration Judge (“IJ”) Jesse B. Christensen,

15 which denied his application for asylum, withholding of

16 removal, and relief under the Convention Against Torture

17 (“CAT”). In re Chang Hui Lin, No. A200 921 074 (B.I.A. Oct.

18 4, 2012), aff’g No. A200 921 074 (Immig. Ct. N.Y. City Jun.

19 6, 2011). We assume the parties’ familiarity with the

20 underlying facts and procedural history in this case.

21 Under the circumstances of this case, we have reviewed

22 the IJ’s decision as supplemented by the BIA. See Yan Chen

23 v. Gonzales,

(2d Cir. 2005). The

24 applicable standards of review are well-established. See

25

(b)(4)(B); see also Yanqin Weng v. Holder,

2 1

(2d Cir. 2009). For applications such as

2 Lin’s, governed by the amendments made to the Immigration

3 and Nationality Act by the REAL ID Act of 2005, the agency

4 may, “[c]onsidering the totality of the circumstances . . .

5 base a credibility determination on the demeanor, candor, or

6 responsiveness of the applicant or witness, the inherent

7 plausibility of [his or her] account,” and inconsistencies

8 in his or her statements, “without regard to whether . . .

9 [they go] to the heart of the applicant’s claim.” See

10

(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534

(2d Cir. 2008) (per curiam).

12 I. One-Year Bar

13 Pursuant to

(a)(3), we lack jurisdiction

14 to review the agency’s determination that an asylum

15 application is untimely. See

(a)(2)(B).

16 Notwithstanding these provisions, however, we retain

17 jurisdiction to review “constitutional claims or questions

18 of law.”

(a)(2)(D). While Lin raises two

19 arguments which may be construed as questions of law, namely

20 that the agency’s adverse credibility determination was

21 improperly used to find he had not timely filed his asylum

22 application, and that the agency failed to consider the date

3 1 of arrival listed on the Notice to Appear, he failed to

2 raise these arguments before the BIA, and thus they are

3 unexhausted. See Lin Zhong v. U.S. Dep’t of Justice, 480

, 119-20 (2d Cir. 2007). Regardless, the IJ

5 explicitly noted that he would also deny asylum based on

6 credibility, and that finding is dispositive of Lin’s

7 petition.

8 II. Asylum, Withholding of Removal, and CAT

9 In finding Lin not credible, the agency reasonably

10 relied on Lin’s inconsistent testimony. See Xiu Xia Lin v.

11 Mukasey,

(2d Cir. 2008). During his

12 merits hearing, Lin changed his testimony regarding whether

13 he had ever had his own passport and whether he had ever

14 left China before 2010. Under the REAL ID Act, the agency

15 properly relied on this inconsistency as a basis for an

16 adverse credibility finding. See 8 U.S.C.

17 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin,

(providing that an IJ may support an adverse

19 credibility determination with “any inconsistency or

20 omission”). In addition, as the IJ noted, this

21 inconsistency goes to the heart of Lin’s claim, as he

22 testified that he left China in 2008 to escape persecution.

4 1 See

(b)(1)(B)(iii); Majidi v. Gonzales, 430

(2d Cir. 2005).

3 We also defer to the agency’s demeanor finding. Li Zu

4 Guan v. I.N.S.,

(2d Cir. 2006). Here, the

5 IJ observed that when Lin was asked whether he had been in

6 South America in 2008, after having just testified that he

7 had never left China before 2010, he became extremely

8 nervous and began to laugh. The IJ further noted that Lin

9 did not similarly react during any of his other testimony,

10 despite stating that he was nervous throughout the hearing.

11 We defer to the IJ’s assessment of Lin’s demeanor,

12 particularly as it is further supported by “specific

13 example[s] of inconsistent testimony” regarding whether Lin

14 had ever left China before 2010. See Li Hua Lin v. U.S.

15 Dep’t of Justice,

(2d Cir. 2006); see also

16 Jin Chen v. U.S. Dep’t of Justice,

(2d

17 Cir. 2005).

18 Furthermore, Lin’s claim that the agency erred because

19 it did not consider his background evidence is without

20 merit. See Xiao Ji Chen, 471 F.3d at 338 n.17 (presuming

21 that the “IJ has taken into account all of the evidence . .

22 . unless the record compellingly suggests otherwise”). The

23 IJ found that Lin had failed to credibly establish that he 5 1 was a practicing Christian. See Yan Chen,

-

2 73. Accordingly, the agency’s adverse credibility

3 determination is supported by substantial evidence. Xiu Xia

4 Lin, 534 F.3d at 167.

5 III. Remand

6 We review the BIA’s denial of a motion to remand for

7 abuse of discretion. Li Yong Cao v. Dep’t of Justice, 421

(2d Cir. 2005); Matter of Coelho,

Dec. 464, 474 (BIA 1992). Here, the agency did not abuse

10 its discretion in denying Lin’s motion to remand, as the

11 medical document he submitted was previously available. See

12

(c)(1). While Lin argues the medical

13 document was previously unavailable because he did not ask

14 family members to obtain it until after his hearing, this

15 does not mean the document itself was unavailable.

16 Furthermore, even if the document constituted new evidence,

17 it would not be “material,” as it does not address Lin’s

18 credibility problems, which were fatal to his application.

19 Li Hua Lin,

.

20 For the foregoing reasons, the petition for review is

21 DENIED. As we have completed our review, the pending motion

22 for a stay of removal in this petition is DISMISSED as moot.

23 Any pending request for oral argument in this petition is 6 1 DENIED in accordance with Federal Rule of Appellate

2 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5 6 7 8 9 10 11 12 13 14 15

7