17-194 Lin v. Sessions BIA Loprest, IJ A205 240 735 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 12th day of September, two thousand 5 eighteen. 6 7 PRESENT: 8 DENNIS JACOBS, 9 PIERRE N. LEVAL, 10 DEBRA ANN LIVINGSTON, 11 Circuit Judges. 12 _____________________________________ 13 14 XUEQIN LIN, 15 Petitioner, 16 17 v. 17-194 18 NAC 19 JEFFERSON B. SESSIONS, III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Joshua Bardavid, New York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting 27 Assistant Attorney General; Carl 28 H. McIntyre, Assistant Director; 29 Benjamin J. Zeitlin, Trial 30 Attorney, Office of Immigration 31 Litigation, United States 32 Department of Justice, 33 Washington, 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 Xueqin Lin, a native and citizen of the

6 People’s Republic of China, seeks review of a January 5,

7 2017, decision of the BIA affirming a September 15, 2015,

8 decision of an Immigration Judge (“IJ”) denying Lin’s

9 application for asylum, withholding of removal, and relief

10 under the Convention Against Torture (“CAT”). In re Xueqin

11 Lin, No. A205 240 735 (B.I.A. Jan. 5, 2017), aff’g No. A205

12 240 735 (Immig. Ct. N.Y. City Sept. 15, 2015). We assume

13 the parties’ familiarity with the underlying facts and

14 procedural history in this case.

15 Under the circumstances of this case, we have reviewed

16 the IJ’s decision as modified by the BIA, i.e., excluding

17 the non-credibility based grounds for denying relief, which

18 the BIA did not reach. See Xue Hong Yang v. U.S. Dep’t of

19 Justice,

(2d Cir. 2005). The applicable

20 standards of review are well established. See 8 U.S.C.

21 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,

, 165-

22 66 (2d Cir. 2008).

23 2 1 The governing REAL ID Act credibility standard provides

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

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

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

5 plausibility of her account, and inconsistencies or

6 omissions in her or her witness’s statements, “without

7 regard to whether an inconsistency, inaccuracy, or

8 falsehood goes to the heart of the applicant’s claim.” 8

9

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

-

10 64, 166-67. “[E]ven where an IJ relies on discrepancies or

11 lacunae that, if taken separately, concern matters

12 collateral or ancillary to the claim, the cumulative effect

13 may nevertheless be deemed consequential by the fact-

14 finder.” Tu Lin v. Gonzales,

(2d Cir.

15 2006) (internal quotation marks and citation omitted). “We

16 defer . . . to an IJ’s credibility determination

17 unless . . . it is plain that no reasonable fact-finder

18 could make such an adverse credibility ruling.” Xiu Xia

19 Lin,

. For the reasons that follow, we

20 conclude that the agency did not err in finding Lin not

21 credible.

22 Initially, the agency reasonably relied on the omission

23 of Lin’s injuries from her friend’s second letter. The 3 1 friend’s first letter referenced injuries on Lin’s face;

2 however, a second letter did not mention injuries. Lin’s

3 current argument that her friend was unaware of her

4 injuries is unpersuasive, as the friend spoke of the injury

5 in the first letter. Lin has therefore failed to show that

6 the agency erred by relying on her friend’s omission.

7 at 167 (affirming adverse credibility determination based,

8 in part, on omissions from corroborating letters).

9 The adverse credibility determination is further

10 bolstered by the IJ’s observations of Lin’s demeanor. 8

(b)(1)(B)(iii). “[D]emeanor is

12 paradigmatically the sort of evidence that a fact-finder is

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

129, 140 (2d Cir. 2006), and “[w]e give particular

15 deference to credibility determinations that are based on

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

17 Jin Chen v. U.S. Dep’t of Justice,

(2d

18 Cir. 2005). The IJ’s demeanor findings are supported by the

19 record. The IJ reasonably concluded that Lin appeared to be

20 testifying from a script because she was unable to provide

21 details beyond those in her application statement.

22 Specifically, Lin was unable to provide details about her

23 escape from the second police raid. Moreover, Lin became 4 1 evasive and nonresponsive on cross examination. Lin argues

2 that the BIA failed to consider her explanation that she

3 was unable to remember details surrounding her escape

4 because her life was in danger; however, the BIA, while

5 acknowledging her explanation, reasonably found it

6 unpersuasive. See Siewe v. Gonzales,

, 167-68

7 (2d Cir. 2007) (“Where there are two permissible views of

8 the evidence, the factfinder’s choice between them cannot

9 be clearly erroneous. . . . [R]ecord support for a contrary

10 inference—even one more plausible or more natural—does not

11 suggest error.” (internal quotation marks omitted)).

12 Because the IJ’s observations are supported by the record,

13 we defer to the demeanor finding.

.

14 Given the foregoing omission and demeanor findings, as

15 well as the corroboration findings that Lin has not

16 challenged in this Court, the “totality of the

17 circumstances” supports the agency’s adverse credibility

18 determination. See Xiu Xia Lin,

. The

19 credibility determination is dispositive of asylum,

20 withholding of removal, and CAT relief because all three

21 claims are based on the same factual predicate. See Paul v.

22 Gonzales,

(2d Cir. 2006).

23 5 1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, any stay of removal

3 that the Court previously granted in this petition is VACATED,

4 and any pending motion for a stay of removal in this petition

5 is DISMISSED as moot. Any pending request for oral argument

6 in this petition is DENIED in accordance with Federal Rule of

7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

8 34.1(b).

9 FOR THE COURT: 10 Catherine O’Hagan Wolfe 11 Clerk of Court

6