20-1738 Lin v. Garland BIA Poczter, IJ A208 597 651

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 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 17th day of October, two thousand twenty-two.

PRESENT: JON O. NEWMAN, DENNY CHIN, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

CONGHE LIN, Petitioner,

v. 20-1738 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Joan Xie, Esq., New York, NY.

FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; Carl H. McIntyre, Jr., Assistant Director; Paul Fiorino, Senior Litigation Counsel, 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 Conghe Lin, a native and citizen of the

People’s Republic of China, seeks review of a May 26, 2020,

decision of the BIA affirming an April 13, 2018, 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 Conghe Lin, No.

A208 597 651 (B.I.A. May 26, 2020), aff’g No. A208 597 651

(Immig. Ct. N.Y. City Apr. 13, 2018). We assume the parties’

familiarity with the underlying facts and procedural history.

We have reviewed both the IJ’s and the BIA’s opinions.

Wangchuck v. Dep’t of Homeland Sec.,

(2d

Cir. 2006). We review an adverse credibility determination

for substantial evidence, see Hong Fei Gao v. Sessions,

(2d Cir. 2018), and “the administrative findings

of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary,” 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 demeanor, candor, or

responsiveness of the applicant or witness, the inherent

plausibility of the applicant’s or witness’s account, the

consistency between the applicant’s or witness’s written and

oral statements (whenever made and whether or not under oath,

and considering the circumstances under which the statements

were made), the internal consistency of each such statement

. . . , and any inaccuracies or falsehoods in such statements,

without regard to whether an inconsistency, inaccuracy, or

falsehood goes to the heart of the applicant’s claim, or any

other relevant factor.”

(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 claims that police in China detained and

beat him for attending an unregistered church and that he

practices Christianity in the United States.

3 The agency reasonably relied in part on an inconsistency

between Lin’s statement at his credible fear interview that

police pushed his mother to the ground while looking for him

after he failed to report as required and his testimony that

only his wife and children were at home at the time. See

(b)(1)(B)(iii). The agency did not err in

relying on the record of Lin’s credible fear interview because

the interview record bears the hallmarks of reliability: it

was conducted with an interpreter, it is memorialized in a

typewritten question-and-answer format, the questions posed

were designed to elicit details of his asylum claim, and Lin’s

responses indicated that he understood the questions posed.

See Ming Zhang v. Holder,

, 724–25 (2d Cir. 2009).

Lin’s discussion of his wife’s lack of education and her

presence during the incident when questioned about the

discrepancy did not resolve the inconsistency in his

statements. 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.” (quotation marks

omitted)). The agency also reasonably concluded that the

4 letter Lin’s wife wrote in support of Lin’s immigration

application undermined Lin’s statement that the police pushed

his mother. Although the letter mentioned that the police

had visited their home, it made no mention of Lin’s mother

– let alone her being pushed – which was significant given

Lin’s testimony that he learned about the incident from his

wife. See

(b)(1)(B)(iii); Hong Fei Gao, 891

F.3d 78–79 (providing that the agency may rely on the omission

of facts a “witness would reasonably have been expected to

disclose”).

The agency also did not err in finding that (1) Lin made

inconsistent statements regarding his church attendance in

the United States as he first stated that he had not attended

services in this country before claiming to have attended

weekly in New York, and (2) Lin exaggerated the frequency of

his church attendance because he initially failed to reveal

his much less frequent attendance during the year he lived in

Indiana. See

(b)(1)(B)(iii); Siewe v.

Gonzales,

, 168–69 (2d Cir. 2007) (“The

speculation that inheres in inference is not ‘bald’ if the

inference is made available to the factfinder by record facts,

or even a single fact, viewed in the light of common sense

5 and ordinary experience. So long as an inferential leap is

tethered to the evidentiary record, we will accord deference

to the finding.”). The agency was not compelled to credit

Lin’s explanation that he thought he was being asked whether

he had ever attended an underground church in the United

States because that was not the question asked and he admitted

that he was unaware of any such churches in this country.

See Majidi,

.

Having questioned Lin’s credibility, the agency

reasonably relied on his failure to rehabilitate his

testimony with reliable corroborating evidence. 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.”). As the agency

found, aside from his wife’s letter, which was not reliable

given the omission discussed above, Lin had no evidence

corroborating the alleged events in China. See Y.C. v.

Holder,

(2d Cir. 2013) (“We defer to the

agency’s determination of the weight afforded to an alien’s

documentary evidence.”). Further, a March 2018 letter from

6 a church in New York, stating that Lin had attended since

November 2015, did not rehabilitate his claim as it suffered

from the same flaw as his testimony by failing to account for

the year he lived in Indiana and attended church infrequently.

See

(b)(1)(B)(iii); Y.C.,

.

The inconsistencies and lack of corroboration constitute

substantial evidence for the adverse credibility

determination. See

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

Lin,

; see also Likai Gao v. Barr,

, 145 n.8 (2d Cir. 2020) (“[E]ven a single inconsistency

might preclude an alien from showing that an IJ was compelled

to find him credible. Multiple inconsistencies would so

preclude even more forcefully.”). The adverse credibility

determination, which relates to both past events and Lin’s

practice of Christianity, is dispositive of asylum,

withholding of removal, and CAT relief because all three

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

Gonzales,

, 156–57 (2d Cir. 2006). Accordingly,

we do not reach the agency’s alternative finding that Lin

failed to establish a well-founded fear of persecution on

account of his religious practice in the United States. See

INS v. Bagamasbad,

(1976) (“As a general rule

7 courts and agencies are not required to make findings on

issues the decision of which is unnecessary to the results

they reach.”).*

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

* Contrary to the Government’s waiver arguments, Lin’s challenge to the adverse credibility determination necessarily challenges the agency’s denial of CAT relief on credibility grounds, and Lin’s failure to challenge the agency’s alternative burden finding is not dispositive of asylum and withholding of removal given that the burden finding did not reach Lin’s past persecution claim.

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