19-4104 Lin v. Garland BIA Vomacka, IJ A206 091 375

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 20th day of May, two thousand twenty-two.

PRESENT: REENA RAGGI, JOSEPH F. BIANCO, EUNICE C. LEE, Circuit Judges. _____________________________________

YUAN LIN, Petitioner,

v. 19-4104 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Gary J. Yerman, Esq., New York, N.Y.

FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Holly M. Smith, Senior Litigation Counsel; David J. Schor, 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 Yuan Lin, a native and citizen of the People’s

Republic of China, seeks review of a November 21, 2019

decision of the BIA affirming a March 9, 2018 decision of an

Immigration Judge (“IJ”), which denied Lin’s application for

asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). In re Yuan Lin, No. A206

091 375 (B.I.A. Nov. 21, 2019), aff’g No. A 206 091 375

(Immigr. Ct. N.Y.C. Mar. 9, 2018). We assume the parties’

familiarity with the underlying facts and procedural history.

We have reviewed the IJ’s decision as modified by the

BIA. See Xue Hong Yang v. U.S. Dep’t of Just.,

(2d Cir. 2005). The standards of review are well

established. See

(b)(4); Hong Fei Gao v.

Sessions,

(2d Cir. 2018) (reviewing adverse

2 credibility determination for substantial evidence); Yanqin

Weng v. Holder,

(2d Cir. 2009) (reviewing

factual findings for substantial evidence and questions of

law de novo).

“Considering the totality of the circumstances, and all

relevant facts, a trier of fact may base a credibility

determination on . . . the inherent plausibility of the

applicant’s . . . account,” and inconsistencies within and

between an applicant’s statements “without regard to whether

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

(b)(1)(B)(iii). “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

v. Mukasey,

(2d Cir. 2008); accord Hong Fei

Gao,

. Substantial evidence supports the

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

claim of religious persecution.

The agency reasonably relied on inconsistencies between

Lin’s application, credible fear interview, and testimony.

See

(b)(1)(B)(iii). Lin was inconsistent

3 about the date of his second arrest, which called into

question the date he said he was handing out religious

leaflets because, depending on the date of the arrest, he

would still have been detained at the time he claimed to be

distributing leaflets. Moreover, he gave two different dates

for when he allegedly distributed those leaflets. Further,

the agency was not required to credit Lin’s explanations that

he gave random dates at his interview because he was scared.

See Majidi v. Gonzales,

(2d Cir. 2005) (“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.” (internal quotation marks

omitted)).

In addition to these inconsistencies, Lin omitted from

his credible fear interview that his parents were permitted

to take him out of detention to receive medical treatment for

a hand injury caused by the police during his arrest and then

return him to detention. The agency reasonably relied on

this omission because Lin mentioned the injury during his

credible fear interview but did not mention the unusual fact

4 that the police allowed his parents to temporarily take him

out of detention for medical treatment. See Singh v.

Garland,

(2d Cir. 2021) (explaining that

whether an omission hurts credibility “depends in part on the

importance that the omitted fact would have had for the

purpose of the earlier telling”); Hong Fei Gao, 891 F.3d at

78–79 (explaining that an IJ should consider “whether

[omitted] facts are ones that a credible petitioner would

reasonably have been expected to disclose under the relevant

circumstances”). Moreover, the omission created an

inconsistency about whether the police paid attention to his

injuries. Cf. id. at 78 (holding that “omissions are less

probative of credibility than inconsistencies created by

direct contradictions” (internal quotation marks omitted)).

The agency also reasonably relied on the lack of

corroboration of Lin’s testimony. “An applicant’s failure

to corroborate his . . . 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.” Biao Yang v. Gonzales,

(2d Cir. 2007). Lin presented no evidence of his

5 church attendance in the United States. Further, the IJ did

not err in rejecting, or in declining to credit, letters from

his parents, aunt, and friends in China because Lin filed

them after the deadline set by the IJ, the authors were not

available for cross-examination, and some of the authors were

interested witnesses. See

(h) (“The

immigration judge may set and extend time limits for the

filing of applications and related documents.”); Y.C. v.

Holder,

(2d Cir. 2013) (“We generally defer

to the agency’s evaluation of the weight to be afforded an

applicant’s documentary evidence.”); In re H-L-H- & Z-Y-Z-,

, 215–16 (B.I.A. 2010) (letters from

applicant’s friends and family were insufficient to provide

substantial support for alien’s claims because they were,

among other deficiencies, from “interested witnesses who were

not subject to cross-examination”), overruled on other

grounds by Hui Lin Huang v. Holder,

, 133–38 (2d

Cir. 2012).

In sum, the inconsistencies, omission, and lack of

corroboration provide substantial evidence for the agency’s

adverse credibility determination. See 8 U.S.C.

6 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166–67. The

adverse credibility determination is dispositive of asylum,

withholding of removal, and CAT relief because all three

claims were based on the same factual predicate. See Paul

v. Gonzales,

, 156–57 (2d Cir. 2006). Because

the adverse credibility determination is dispositive, we do

not reach the Government’s argument that Lin failed to exhaust

his CAT claim before the BIA.

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 of Court

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