Chang Bing Lin v. Holder , 534 F. App'x 61 ( 2013 )

12-553
Lin v. Holder
BIA
Vomacka, IJ
A089 770 111
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 30th day of August, two thousand thirteen.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 CHANG BING LIN, AKA CHANG BIN LIN,
14 Petitioner,
15
16 v. 12-553
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Richard Tarzia, Belle Mead, New
24 Jersey.
25
26 FOR RESPONDENT: W. Daniel Shieh, Trial Attorney,
27 Jacob A. Bashyrov, Office of
28 Immigration Litigation, Civil
1 Division, for Stuart F. Delery,
2 Acting Assistant Attorney General
3 and Carl H. McIntyre, Jr., Assistant
4 Director, United States Department
5 of Justice, Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Chang Bing Lin, a native and citizen of the People’s
12 Republic of China, seeks review of a January 19, 2012 order
13 of the BIA, affirming the June 23, 2010 decision of
14 Immigration Judge (“IJ”) Alan A. Vomacka, which denied his
15 application for asylum, withholding of removal, and relief
16 under the Convention Against Torture (“CAT”). In re Chang
17 Bing Lin, No. A089 770 111 (B.I.A. Jan. 19, 2012), aff’g No.
18 A089 770 111 (Immig. Ct. N.Y. City June 23, 2010). We
19 assume the parties’ familiarity with the underlying facts
20 and procedural history in this case.
21 Under the circumstances of this case, we review both
22 the BIA’s and IJ’s opinions. Yun-Zui Guan v. Gonzales, 432
23 F.3d 391, 394 (2d Cir. 2005). The applicable standards of
24 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
25 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2
1 For asylum applications such as Lin’s, governed by the
2 REAL ID Act, the agency may, considering the totality of the
3 circumstances, base a credibility finding on an asylum
4 applicant’s demeanor, the plausibility of his account, and
5 inconsistencies in his statements, without regard to whether
6 they go “to the heart of the applicant’s claim.” 8 U.S.C.
7 § 1158(b)(1)(B)(iii). We conclude that substantial evidence
8 supports the agency’s determination that Lin did not testify
9 credibly regarding his Falun Gong claim.1
10 In finding Lin not credible, the agency reasonably
11 relied on his failure to indicate during his credible fear
12 interview either that he practiced Falun Gong in China, or
13 that Chinese authorities targeted him on account of his
14 Falun Gong activities. See Xiu Xia Lin v. Mukasey, 534 F.3d
15 162, 166-67 n.3 (2d Cir. 2008) (per curiam) (holding that
16 for purposes of analyzing a credibility determination, “[a]n
17 inconsistency and an omission are . . . functionally
18 equivalent”). The agency also reasonably relied on
19 discrepancies between: (1) Lin’s testimony and asylum
1
As Lin does not challenge the IJ’s determination
that his family planning claim was precluded by Shi Liang
Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.
2007), we do not address it. See Gui Yin Liu v. INS, 508
F.3d 716, 723 n.6 (2d Cir. 2007).
3
1 application with regard to the length of time that he was in
2 hiding prior to his departure from China; and (2) Lin’s
3 testimony and both his asylum application and wife’s letter
4 with regard to the number of times that Chinese authorities
5 sought to arrest him for practicing Falun Gong. See id. at
6 167 (“[A]n IJ may rely on any inconsistency or omission in
7 making an adverse credibility determination as long as the
8 ‘totality of the circumstances’ establishes that an asylum
9 applicant is not credible.”); see also Iouri v. Ashcroft,
10 487 F.3d 76, 81-82 (2d Cir. 2007) (holding that
11 discrepancies between an applicant’s asylum application and
12 testimony may support an adverse credibility determination).
13 Lin failed to provide compelling explanations for these
14 discrepancies. See Majidi v. Gonzales, 430 F.3d 77, 80-81
15 (2d Cir. 2005).
16 Furthermore, the IJ reasonably found implausible Lin’s
17 assertion that he practiced Falun Gong in Flushing, Queens
18 two to three days per week while working full-time and
19 residing in New Jersey six days per week. See Wensheng Yan
20 v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2009) (holding that
21 where the IJ’s findings are “tethered to record evidence,
22 and there is nothing else in the record from which a firm
4
1 conviction of error could properly be derived,” we will not
2 disturb the inherent implausibility finding). Additionally,
3 we find no error in the IJ’s reliance, in part, on Lin’s
4 lack of knowledge of the Falun Gong exercises in light of
5 his assertion that he had regularly practiced Falun Gong in
6 the United States for two years. See Rizal v. Gonzales, 442
7 F.3d 84, 90 (2d Cir. 2006).
8 Finally, the IJ reasonably declined to afford
9 evidentiary weight to the photographs Lin submitted of his
10 Falun Gong practice, given that Lin failed to clarify the
11 identity of the photographer(s), admitted that two of the
12 photographs were taken near his attorney’s office solely for
13 litigation purposes, and the photographs depicted Lin
14 practicing alone, even though he testified that he practiced
15 with others. See Biao Yang v. Gonzales, 496 F.3d 268, 273
16 (2d Cir. 2007) (holding that the agency may rely on a lack
17 of corroborative evidence where an applicant’s testimony is
18 not otherwise credible); see also Xiao Ji Chen v. U.S. Dep’t
19 of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that
20 the weight afforded to the applicant’s evidence in
21 immigration proceedings lies largely within the discretion
22 of the IJ).
23
5
1 Ultimately, because a reasonable fact-finder would not
2 be compelled to conclude to the contrary regarding the
3 agency’s inconsistency, implausibility, and lack of
4 corroboration findings, the agency’s adverse credibility
5 determination is supported by substantial evidence.
6 See Xiu Xia Lin, 534 F.3d at 165-66. The agency’s denial of
7 Lin’s application for asylum, withholding of removal, and
8 CAT relief was not in error as all three claims share the
9 same factual predicate. See Paul v. Gonzales, 444 F.3d 148,
10 156 (2d Cir. 2006) (withholding of removal); Xue Hong Yang
11 v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005)
12 (CAT).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DENIED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
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