Jin Lin v. Holder , 525 F. App'x 23 ( 2013 )

12-96
Lin v. Holder
BIA
Hom, IJ
A087 443 580
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of May, two thousand thirteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 JIN LIN,
14 Petitioner,
15
16 v. 12-96
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Blair T. O’Connor,
27 Assistant Director; John B. Holt,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
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 GRANTED in part and DENIED in part.
5 Jin Lin, a native and citizen of China, seeks review of
6 a December 14, 2011 order of the BIA affirming the June 23,
7 2010 decision of an Immigration Judge (“IJ”) denying his
8 application for asylum, withholding of removal, and relief
9 under the Convention Against Torture (“CAT”). In re Jin
10 Lin, No. A087 443 580 (B.I.A. Dec. 14, 2011), aff’g No. A087
11 443 580 (Immig. Ct. N.Y. City June 23, 2010). We assume the
12 parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the IJ’s decision as modified by the BIA’s decision. See
16 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
17 (2d Cir. 2005). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
19 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Because
20 the BIA assumed that Lin’s application was timely, we do not
21 reach the IJ’s finding as to the applicability of the filing
22 deadline in 8 U.S.C. § 1158(a)(2)(B).
23
2
1 For applications such as Lin’s, governed by the
2 amendments made to the Immigration and Nationality Act by
3 the REAL ID Act of 2005, the agency may, considering the
4 totality of the circumstances, base a credibility finding on
5 the applicant’s “demeanor, candor, or responsiveness,” the
6 plausibility of his account, and inconsistencies in his
7 statements, without regard to whether they go “to the heart
8 of the applicant’s claim.” See 8 U.S.C.
9 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
10 167 (2d Cir. 2008).
11 Although we “defer . . . to an IJ’s credibility
12 determination unless, from the totality of the
13 circumstances, it is plain that no reasonable fact-finder
14 could make such an adverse credibility ruling,” Xiu Xia Lin,
15 534 F.3d at 167, the IJ’s adverse credibility determination
16 here is not supported by substantial evidence, as it is
17 based on mischaracterizations of the record, see Tian-Yong
18 Chen v. INS, 359 F.3d 121, 129 (2d Cir. 2004).
19 The IJ based his credibility finding solely on two
20 purported inconsistencies in Lin’s testimony:
21 (1) inconsistent testimony regarding the “diagnosis” of a
22 childhood injury that Lin sustained, which partially
3
1 motivated him to take up the practice of Falun Gong; and
2 (2) Lin’s testimony that he had seen a doctor after being
3 beaten in police custody, followed by his testimony that he
4 had not seen a doctor and had merely purchased medicine to
5 treat his own wounds. First, the precise diagnosis or
6 nature of Lin’s childhood injury was never raised during his
7 testimony, as neither party nor the IJ asked Lin about this
8 topic, and thus, the IJ’s finding that Lin testified
9 inconsistently about his injury is without support in the
10 record. Such a finding is the result of flawed fact-finding
11 and does not “bear a legitimate nexus to the [IJ’s
12 credibility] finding.” Xiu Xia Lin, 534 F.3d at 166; see
13 Singh v. Mukasey, 553 F.3d 207, 213 (2d Cir. 2009).
14 Furthermore, as to the purported inconsistency in Lin’s
15 testimony regarding whether he saw a doctor upon his release
16 from police custody, the complete record supports Lin’s
17 contention that he was briefly confused about the
18 government’s question, and immediately clarified his
19 testimony when the confusion was resolved. While Lin did at
20 one point state that he saw a doctor upon release from
21 detention, the context of Lin’s entire direct and cross
22 examination, which is marked by other moments of
4
1 miscommunication between Lin and the government, suggests
2 that Lin could have been referring to his visits to a doctor
3 years before for his childhood injury. Upon clarifying
4 questions from the government, Lin explained this reference
5 and testified, consistently with previous and later
6 testimony, that after his release from detention he
7 purchased ointment with which he treated his own wounds.
8 See Tian-Yong Chen, 359 F.3d at 129; Dong Gao v. BIA, 482
9 F.3d 122, 128-34 (2d Cir. 2007) (purported inconsistencies
10 which actually resulted from confusion during questioning,
11 and which were followed by consistent testimony, were
12 improper basis for adverse credibility determination).
13 Given the ambiguity in the record on this point, Lin’s
14 purported inconsistency regarding seeing a doctor upon
15 release from custody, standing alone, does not constitute
16 substantial evidence to support the IJ’s adverse credibility
17 determination. But the IJ’s credibility determination
18 relied on this purported inconsistency, in conjunction
19 solely with the inconsistency finding regarding Lin’s
20 childhood injury—San inconsistency finding clearly not
21 supported by the record. In such circumstances, we must
22 conclude that there is a realistic possibility that, absent
23 the IJ’s errors, the IJ or BIA might have reached a
5
1 different conclusion. See Cao He Lin v. U.S. Dep’t of
2 Justice, 428 F.3d 391, 401 (2d Cir. 2005). We therefore
3 remand for further proceedings regarding Lin’s eligibility
4 for asylum or withholding of removal under 8 U.S.C.
5 § 1231(b)(3).
6 If upon remand Lin is found to be credible as to his
7 practice of Falun Gong in China or the United States, the
8 agency should address his claim that there is a “pattern or
9 practice” of persecution of Falun Gong practitioners in
10 China, to the extent that reaching this claim is necessary
11 to resolve his eligibility for asylum or withholding of
12 removal. See 8 C.F.R. § 1208.13(b)(2)(iii). Finally,
13 because Lin fails to argue sufficiently that he is entitled
14 to protection under the CAT, his petition is denied as to
15 CAT relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
16 545 n.7 (2d Cir. 2005).
17 For the foregoing reasons, the petition for review is
18 GRANTED in part and DENIED in part, and the case REMANDED
19 for further proceedings consistent with this order. As we
20 have completed our review, the pending motion for a stay of
21 removal in this petition is DISMISSED as moot. Any pending
22 request for oral argument in this petition is DENIED in
6
1 accordance with Federal Rule of Appellate Procedure
2 34(a)(2), and Second Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
7