19-140 Lin v. Garland BIA Nelson, IJ A206 899 515 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 18th day of May, two thousand twenty-one.

PRESENT: ROBERT A. KATZMANN, RICHARD C. WESLEY, SUSAN L. CARNEY, Circuit Judges. _____________________________________

WENHUI LIN, Petitioner,

v. 19-140 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Zhen Liang Li, Law Office of Zhen Liang Li, New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Paul Fiorino, Senior Litigation Counsel; Sherry D. Soanes, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

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 Wenhui Lin, a native and citizen of the

People’s Republic of China, seeks review of a December 20,

2018, decision of the BIA affirming a November 1, 2017,

decision of an Immigration Judge (“IJ”) denying asylum,

withholding of removal, and protection under the Convention

Against Torture (“CAT”). See In re Wenhui Lin, No. A 206 899

515 (B.I.A. Dec. 20, 2018), aff’g No. A 206 899 515 (Immig.

Ct. N.Y. City Nov. 1, 2017). We assume the parties’

familiarity with the underlying facts and procedural history.

Under the circumstances of this case, we have reviewed

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

inconsistency in the arrest warrant that the BIA declined to

rely on. See Xue Hong Yang v. U.S. Dep’t of Justice,

(2d Cir. 2005). We review adverse credibility

determinations for substantial evidence. See Hong Fei Gao v.

Sessions,

(2d Cir. 2018); see also 8 U.S.C. 2 § 1252(b)(4)(B).

“Considering the totality of the circumstances, and all

relevant factors, a trier of fact may base a credibility

determination on . . . the consistency between the applicant’s

or witness’s written and oral statements . . . , the internal

consistency of each such statement, [and] the consistency of

such statements with other evidence of record . . . without

regard to whether an inconsistency, inaccuracy, or falsehood

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

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

, 163–64 (2d Cir. 2008). “We defer . . . to an IJ’s

credibility determination unless, from the totality of the

circumstances, it is plain that no reasonable fact-finder

could make such an adverse credibility ruling.” Xiu Xia Lin,

; accord Hong Fei Gao,

. The

agency’s determination that Lin was not credible as to his

claim that he was arrested, detained, and beaten in China on

account of his religious practice is supported by substantial

evidence.

The agency reasonably relied on Lin’s inconsistent

account of his past persecution as compared to the account in

3 his friend’s letter. See

(b)(1)(B)(iii); see

Xiu Xia Lin,

(upholding agency’s reliance on

discrepancies between the petitioner’s testimony and letters

from third parties). Lin testified that his friend, Guiluan

Lin was arrested with him, but his friend’s letter states

that “Lin, Wenhui was arrested with pastor and other members.

They were detained . . . , they were asked to report to local

police . . . , they lost their personal freedom.” Certified

Admin. Record 29. A plain reading of the letter suggests

that Lin and others were arrested, but not Guiluan Lin. See

Hong Fei Gao,

(stating that direct

contradictions and inconsistencies are more probative of

credibility than omissions). The BIA was not required to

credit an updated letter that Lin presented on appeal--in

which Guiluan Lin stated that he had also been arrested and

had not expressed himself well in the prior letter because of

his limited education--as Lin did not allege any

mistranslation or explain why a lack of education would have

resulted in such a mistake. See Majidi v. Gonzales,

(2d Cir. 2005) (“A petitioner must do more than

offer a plausible explanation for his inconsistent statements

4 to secure relief; he must demonstrate that a reasonable fact-

finder would be compelled to credit his testimony.” (internal

quotation marks and citation omitted)).

The agency also properly relied on the inconsistency

between Lin’s testimony and his mother’s letter regarding

when he first told her about going to church, as well as Lin’s

shifting testimony as he attempted to explain the

discrepancy. See

(b)(1)(B)(iii). Lin’s

mother wrote that Lin called her the night he first went to

church to tell her that his friend was taking him to church;

but Lin testified that he did not tell his mother until after

he attended; and when confronted with the inconsistency, he

testified that he had told her before, then that he had told

her after, before finally stating he had called her twice.

Although the initial discrepancy was relatively trivial and

could be attributed to a poor memory, the IJ reasonably

concluded that Lin’s vacillating and contradictory responses

undermined his credibility. And given Lin’s ultimately

detailed testimony about two telephone calls, the IJ did not

err in rejecting his explanation of a poor memory. See

Majidi,

.

5 Accordingly, we find that the adverse credibility

determination is supported by substantial evidence. See Hong

Fei Gao,

; Xiu Xia Lin, 534 F.3d at 165–66. 1

That determination is dispositive of the claims for asylum,

withholding of removal, and CAT protection because the claims

were based on the same factual predicate. See Paul v.

Gonzales,

, 156–57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

1 We do not rely on the IJ’s finding that Lin failed to provide details about his medical treatment, where he testified to the treatment he received and that he was kept in the hospital for observation after a CT scan. We decline to remand on this basis because the findings discussed above constitute substantial evidence for the agency’s decision. See Xiao Ji Chen v. U.S. Dep’t of Justice,

, 338–39 (2d Cir. 2006). 6