Lin v. Barr
Lin v. Barr
Opinion
17-1136 Lin v. Barr BIA Poczter, IJ A206 580 431/432/433/434/435
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 1st day of May, two thousand nineteen. 5 6 PRESENT: 7 BARRINGTON D. PARKER, 8 RAYMOND J. LOHIER, JR., 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 BIJIN LIN, YANFENG LIU, CHENXIA 14 LIU, YUTING LIU, YUXUAN LIU, 15 Petitioners, 16 17 v. 17-1136 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Troy Nader Moslemi, Flushing, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Cindy S. 28 Ferrier, Assistant Director; Matt 29 A. Crapo, Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 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 Petitioners Bijin Lin (“Lin”), Yangfeng Liu, Chenxia Liu,
6 Yuting Liu, Yuxuan Liu, natives and citizens of the People’s
7 Republic of China, seek review of a March 27, 2017, decision
8 of the BIA affirming a July 26, 2016, decision of an
9 Immigration Judge (“IJ”) denying Lin’s application for
10 asylum, withholding of removal, and relief under the
11 Convention Against Torture (“CAT”). In re Bijin Lin, et al.,
12 Nos. A 206 580 431/432/433/434/435 (B.I.A. Mar. 27, 2017),
13 aff’g No. A 206 580 431/432/433/434/435 (Immig. Ct. N.Y. City
14 July 26, 2016). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 Under the circumstances of this case, we have reviewed
17 the IJ’s decision as modified by the BIA, and consider only
18 the adverse credibility determination. See Xue Hong Yang v.
19 U.S. Dep’t of Justice,
426 F.3d 520, 522(2d Cir. 2005).
20 The applicable standards of review are well established. See
21
8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d 22 162, 165–66 (2d Cir. 2008). In making a credibility 2 1 determination, the agency must “[c]onsider[] the totality of
2 the circumstances” and may base a finding on the applicant’s
3 “demeanor, candor, or responsiveness, . . . the inherent
4 plausibility of the applicant’s . . . account,”
5 inconsistencies in the applicant’s statements or between her
6 statements and other evidence, “without regard to whether an
7 inconsistency, inaccuracy, or falsehood goes to the heart of
8 the applicant’s claim, or any other relevant factor.” 8
9
U.S.C. § 1158(b)(1)(B)(iii). “We defer. . . to an IJ’s
10 credibility determination unless, from the totality of the
11 circumstances, it is plain that no reasonable fact-finder
12 could make such an adverse credibility ruling.” Xiu Xia Lin,
13
534 F.3d at 167. The adverse credibility determination of
14 the IJ is supported by substantial evidence.
15 Inconsistencies
16 The IJ reasonably relied on inconsistencies between
17 Lin’s asylum application and her testimony, internal
18 inconsistencies in her testimony, and inconsistencies
19 between her and her husband’s testimony in making the
20 adverse credibility determination. See 8 U.S.C.
21 § 1158(b)(1)(B)(iii). First, Lin’s account was
22 inconsistent regarding how many times she went into hiding. 3 1 Her declaration recounted that she went into hiding twice,
2 after the birth of her second child in 2000 because she
3 feared forced sterilization, and after the abortion in
4 2013. But on cross-examination, she testified that she
5 went into hiding once—after the forced abortion in 2013.
6 Although she later reverted to the facts from her
7 application, stating that she had been in hiding for over
8 ten years, the IJ was not compelled to credit her
9 explanation that she “made a mistake” as that time spent in
10 hiding was a central aspect of Lin’s asylum claim. See
11 Majidi v. Gonzales,
430 F.3d 77, 80(2d Cir. 2005).
12 Second, Lin’s testimony was inconsistent with her
13 husband’s testimony. Lin testified that while in hiding, she
14 and her husband purchased an apartment under her father-in-
15 law’s name, but Lin’s husband testified that he purchased the
16 apartment under his own name.
17 Finally, Lin’s testimony about the sequence of events
18 following her abortion was inconsistent with her asylum
19 application. Lin’s application reflected that after the
20 abortion, she briefly rested at the hospital, went home
21 until her husband returned from a business trip five days
22 later, and then went into hiding at her sister’s home. But 4 1 she testified that she went directly to her sister’s house
2 from the hospital. All three of these inconsistencies
3 support the adverse credibility determination. See 8
4
U.S.C. § 1158(b)(1)(B)(iii).
5 Implausible Testimony
6 In addition to inconsistencies in Lin’s account, the IJ
7 reasonably relied on certain implausible aspects of her
8 persecution claim. See
8 U.S.C. § 1158(b)(1)(B)(iii). Lin
9 stated that she went into hiding from family planning
10 officials in 2000 because she feared sterilization after
11 becoming pregnant with her second child. Although she
12 remained in hiding for over ten years, she and her husband
13 lived in the same province the entire time, operated a
14 construction business, purchased an apartment, renewed their
15 passports, traveled abroad, and enrolled their three children
16 in school. The IJ properly inferred that Lin’s testimony
17 that she was able to live an open life while hiding from
18 government officials was implausible. See Siewe v. Gonzales,
19
480 F.3d 160, 168-69(2d Cir. 2007) (recognizing that IJ may
20 draw reasonable inferences when “made available to the
21 factfinder by record facts . . . viewed in the light of common
22 sense and ordinary experience.”); Xiao Ji Chen v. U.S. Dep’t 5 1 of Justice,
471 F.3d 315, 336 n.16 (2d Cir. 2006).
2 Corroboration
3 Lin’s lack of reliable corroboration bolsters the adverse
4 credibility determination. “An applicant’s failure to
5 corroborate his or her testimony may bear on credibility,
6 because the absence of corroboration in general makes an
7 applicant unable to rehabilitate testimony that has already
8 been called into question.” Biao Yang v. Gonzales,
496 F.3d 9268, 273 (2d Cir. 2007). As noted above, Lin’s statement and
10 testimony were inconsistent about when she went into hiding
11 at her sister’s house, and Lin did not provide any statement
12 from her sister to clarify the chronology. Given the
13 problems with Lin’s credibility and Lin’s failure to show
14 that a letter was unavailable, the IJ did not err by requiring
15 a letter. See
8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu v.
16 Holder,
575 F.3d 193, 196-97(2d Cir. 2009).
17 The IJ also noted that she considered the remainder of
18 Lin’s documentary evidence and found that it did not
19 rehabilitate Lin’s testimony. The documentary evidence
20 consisted mostly of government documents and newspaper
21 articles. The IJ remarked that the remaining evidence “was
22 authored by interested witnesses not subject to cross- 6 1 examination” or was “unauthenticated Chinese government
2 documents.”
3 Lin argues that the IJ overlooked a bank document which
4 was neither from an interested witness nor a government
5 document. Even if the IJ mischaracterized the bank document
6 as a “government” document, there is no indication that the
7 IJ failed to consider it or that it would have rehabilitated
8 Lin’s testimony. See Mendez v. Holder,
566 F.3d 316, 323(2d
9 Cir. 2009) (The agency is not required to “explicitly
10 consider[]” each item of evidence or even describe it
11 perfectly). Lin allows that the remaining documentary
12 evidence consists of unauthenticated government documents,
13 but she contends that they are not from interested witnesses.
14 Although the IJ erred in stating that the documents were from
15 interested witnesses, the IJ explicitly acknowledged the
16 unauthenticated government documents in its evaluation of
17 Lin’s corroborating evidence. See Mendez,
566 F.3d at 323.
18 Accordingly, Lin’s argument essentially challenges the weight
19 the IJ gave to the unauthenticated government documents, and
20 we generally defer to the agency in such a determination.
21 See Y.C. v. Holder,
741 F.3d 324, 334(2d Cir. 2013).
22 Given Lin’s internally inconsistent and implausible 7 1 testimony, the inconsistencies between her and her husband’s
2 testimony, and the lack of reliable corroboration, the
3 “totality of the circumstances,” supports the adverse
4 credibility determination. Xiu Xia Lin,
534 F.3d at 167.
5 That determination is dispositive of asylum, withholding of
6 removal, and CAT relief because all three claims are based on
7 the same factual predicate. See Paul v. Gonzales,
444 F.3d 8 148, 156-57(2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of removal
11 that the Court previously granted in this petition is VACATED,
12 and any pending motion for a stay of removal in this petition
13 is DISMISSED as moot. Any pending request for oral argument
14 in this petition is DENIED in accordance with Federal Rule of
15 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
16 34.1(b).
17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, 19 Clerk of Court 20
8
Reference
- Status
- Unpublished