16-521 Lin v. Sessions 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.

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 30th day of May, two thousand eighteen.

PRESENT: ROSEMARY S. POOLER, REENA RAGGI, PETER W. HALL, Circuit Judges. _____________________________________

GUI GUO LIN, AKA GUO LIN, Petitioner,

v. No. 16-521 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Yee Ling Poon (Deborah Niedermeyer, on the brief,) Law Office of Yee Ling Poon, LLC, New York, N.Y.

FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Bernard A. Joseph, Senior Litigation Counsel; Jason Wisecup, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. 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 Gui Guo Lin, a native and citizen of China,

seeks review of a February 2, 2016, decision of the BIA

affirming a February 24, 2014, 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 Gui Guo Lin, No. A205 271 162

(B.I.A. Feb. 2, 2016), aff’g No. A205 271 162 (Immig. Ct.

N.Y.C. Feb. 24, 2014). 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 modified by the BIA (i.e., minus the

IJ’s internal relocation finding, which the BIA declined to

reach). See Xue Hong Yang v. U.S. Dep’t of Justice,

(2d Cir. 2005). The applicable standards of review

are well established. See

(b)(4)(B); Xiu Xia

Lin v. Mukasey,

(2d Cir. 2008).

The governing REAL ID Act credibility standard provides

that the agency must “[c]onsider[] the totality of the

2 circumstances,” and may base a credibility finding on an

applicant’s “demeanor, candor, or responsiveness,” the

plausibility of his account, and inconsistencies in his or

his witness’s statements, “without regard to whether” they go

“to the heart of the applicant’s claim.”

(b)(1)(B)(iii); Xiu Xia Lin,

. “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,

. Further, “[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.” Majidi

v. Gonzales,

(2d Cir. 2005) (internal

quotation marks omitted). For the reasons that follow, we

conclude that substantial evidence supports the agency’s

finding that Lin was not credible.

First, the agency reasonably relied on the inconsistency

between Lin’s testimony and his wife’s letter regarding the

police visits after Lin left China. See Xiu Xia Lin,

-67 & n.3 (“An inconsistency and an omission

are . . . functionally equivalent” for credibility

3 purposes). Lin testified that the police came to his home

“more than 10 times” while he was in hiding in China and “more

than 10 times” after he fled to the United States. Lin’s

wife’s letter, however, states only that “officials still

came to [the] house to see if [Lin] was home” while Lin was

in hiding in China. Certified Administrative Record (“CAR”)

at 273. Lin was asked why his wife’s letter omitted the police

visits after he left China, and he answered that the police

continue to visit his home. The IJ was not compelled to

accept this explanation because it was nonresponsive and did

not resolve Lin’s wife’s omission. See Majidi,

. Moreover, while Lin argued before the BIA that he merely

provided additional details about the number of visits

mentioned in his wife’s letter, the BIA reasonably rejected

this explanation because it did not resolve the inconsistency

involving the police’s visits after Lin’s departure from

China. See

Notwithstanding that Lin’s wife’s letter

states that, “[d]uring that time, the officials still came to

my house,” the agency reasonably determined that the

referenced time period relates to when Lin was in hiding in

China. See CAR at 273; Siewe v. Gonzales,

(2d Cir. 2007) (“Where there are two permissible views of the

4 evidence, the factfinder’s choice between them cannot be

clearly erroneous.” (internal quotation marks omitted)).

Second, the agency reasonably relied on the inconsistency

between Lin’s and his pastor’s testimony about whether Lin

had ever mentioned his past experiences in China. See Xiu

Xia Lin,

. Lin testified that he told his

pastor during casual conversation that he fled China because

his wife exceeded the birth limit in violation of family

planning policy. Lin’s pastor testified, however, that Lin

told him only that he was married and had children in China.

Although Lin argued before the agency that his pastor had a

faulty memory, was hard of hearing, and had macular

degeneration, the agency was not compelled to accept these

explanations for the inconsistency. See Majidi,

. While Lin’s pastor testified that he was hard of hearing

and had vision problems due to macular degeneration, he did

not testify that he had a tendency to be forgetful. He was

clear in his testimony that Lin had never told him about Lin’s

wife’s forced sterilization, and he had no problems recalling

other details of his conversation about Lin’s family.

Third, the agency reasonably based its credibility

determination on the IJ’s observations of Lin’s demeanor.

5 See Xiu Xia Lin,

. “[D]emeanor is

paradigmatically the sort of evidence that a fact-finder is

best positioned to evaluate,” Li Zu Guan v. INS,

(2d Cir. 2006), and we therefore “give particular

deference to credibility determinations that are based on

the adjudicator’s observation of the applicant’s demeanor,”

Jin Chen v. U.S. Dep’t of Justice,

(2d

Cir. 2005). Here, the IJ reasonably found that Lin was

evasive and non-responsive when asked about the police’s

visits to his home and needed to be asked multiple times

before providing even basic information about these visits.

The record does indicate that Lin only provided the least

detail about these visits after repeated questioning. The

bare transcript does not allow us to determine whether this

failure to answer can be attributed to Lin’s evasion or

something else, but it is consistent with the IJ’s finding.

Because the IJ’s demeanor finding is directly linked to

testimony the IJ reasonably found to be non-credible, we

have even more reason to defer to it. See Li Hua Lin v.

U.S. Dep’t of Justice,

(2d Cir. 2006) (“We

can be still more confident in our review of observations

about an applicant’s demeanor where, as here, they are

6 supported by specific examples of inconsistent

testimony.”).

Lastly, the agency reasonably found Lin’s corroborating

evidence insufficient to rehabilitate his credibility. See

Biao Yang v. Gonzales,

(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.”). Lin does not

challenge the treatment of his wife’s letter, which the agency

reasonably declined to credit because it was inconsistent

with Lin’s testimony. See Xiao Ji Chen v. U.S. Dep’t of

Justice,

(2d Cir. 2006) (holding that the

weight accorded to an applicant’s evidence “lie[s] largely

within the discretion of the IJ” (internal quotation marks

omitted)). Instead, Lin argues that the IJ failed to provide

notice of his need to submit additional corroboration. His

argument is misplaced, however, because he did not exhaust it

before the BIA, and “[a]n alien applying for relief or

protection from removal has the burden of proof.” 8 U.S.C

§ 1229a(c)(4)(A); Lin Zhong v. U.S. Dep’t of Justice,

(2d Cir. 2007) (providing that judicially

7 imposed issue exhaustion is mandatory); cf. Chuilu Liu v.

Holder,

(2d Cir. 2009) (“While [the Court]

ha[s] sometimes remanded a case if the IJ failed to explain

his reliance on a lack of corroborating evidence, the alien

bears the ultimate burden of introducing such evidence

without prompting from the IJ.”).

Given the agency’s foregoing findings regarding demeanor

and inconsistencies, and its reasonable treatment of Lin’s

corroborating evidence, the totality of the circumstances

supports the adverse credibility determination. See Xiu Xia

Lin,

. A reasonable adjudicator would not

be compelled to conclude otherwise.

. The

credibility finding is dispositive of Lin’s family-planning-

based claims for asylum, withholding of removal, and CAT

relief because those claims are each based on the same

discredited factual predicate. See Paul v. Gonzales,

(2d Cir. 2006). Lin does not challenge the

agency’s determination that he did not independently

establish a well-founded fear of future persecution based on

his Christian faith and has therefore waived review of that

determination. See Norton v. Sam’s Club,

(2d Cir. 1998) (“Issues not sufficiently argued in the briefs

8 are considered waived and normally will not be addressed on

appeal.”).

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

9