Lin v. Barr ( 2019 )

17-3760
Lin v. Barr
BIA
Vomacka, IJ
A076 024 011
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 17th day of July, two thousand nineteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 BIN YUEN LIN,
14 Petitioner,
15
16 v. 17-3760
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Margaret W. Wong, Cleveland, OH.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Jeffery R.
27 Leist, Senior Litigation Counsel;
28 Jennifer A. Bowen, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of
31 Justice, Washington, DC.
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 DENIED.
5 Petitioner Bin Yuen Lin, a native and citizen of the
6 People’s Republic of China, seeks review of an October 24,
7 2017, decision of the BIA affirming a January 27, 2017,
8 decision of an Immigration Judge (“IJ”) reinstating a prior
9 denial of Lin’s application for asylum, withholding of
10 removal, and relief under the Convention Against Torture
11 (“CAT”) and concluding that Lin filed a frivolous asylum
12 application. In re Bin Yuen Lin, No. A 076 024 011 (B.I.A.
13 Oct. 24, 2017), aff’g No. A 076 024 011 (Immig. Ct. N.Y. City
14 Jan. 27, 2017). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 Under the circumstances of this case, we have reviewed
17 the IJ’s decision as supplemented by the BIA. Niang v.
18 Holder, 762 F.3d 251, 253 (2d Cir. 2014). We review the
19 agency’s factual findings for substantial evidence and its
20 legal conclusions de novo. Id.
21 I. Frivolous Finding
22 “A person who makes an application for asylum determined
23 to be ‘frivolous,’ or deliberately and materially false, is
2
1 subject to a grave penalty: permanent ineligibility for most
2 forms of relief under the immigration laws.” Mei Juan Zheng
3 v. Mukasey, 514 F.3d 176, 178 (2d Cir. 2008); see also 8
4 U.S.C. § 1158(d)(6). Before being subject to this permanent
5 bar, Lin was entitled to procedural safeguards: “(1) notice
6 . . . of the consequences of filing a frivolous application;
7 (2) a specific finding . . . that [she] knowingly filed a
8 frivolous application; (3) sufficient evidence in the record
9 to support the finding that a material element of the asylum
10 application was deliberately fabricated; and (4) . . .
11 sufficient opportunity to account for any discrepancies or
12 implausible aspects of the claim.” In re Y-L-, 24 I. & N.
13 Dec. 151, 155 (B.I.A. 2007).
14 For the reasons discussed below we find no basis to
15 overturn the agency’s determination that Lin knowingly filed
16 a frivolous application. The agency employed all four
17 procedural safeguards: Lin had sufficient notice of the
18 consequences of filing a frivolous application because she
19 received both written and oral warnings, see Niang, 762 F.3d
20 at 254-55; the agency explicitly addressed the frivolous
21 finding in its decisions; the agency’s finding is supported
22 by the record; and Lin had an opportunity to explain the
23 discrepancy between her asylum application and her testimony
3
1 and proffered an unpersuasive explanation. The discussion
2 that follows addresses Lin’s arguments concerning the third
3 and fourth requirements and her challenge to the IJ’s decision
4 not to refrain from exercising his discretion to enter a
5 finding that Lin’s application was frivolous.
6 Lin contends that the third requirement was not satisfied
7 because her omission in her asylum application of her forced
8 abortion and her representation that neither she nor anyone
9 in her family had been arrested or detained did not establish
10 that she had fabricated a material element of her claim.
11 Although we have cautioned against placing too much weight on
12 omissions from asylum applications, see Hong Fei Gao v.
13 Sessions, 891 F.3d 67, 80 (2d Cir. 2018) (explaining that an
14 asylum applicant is “not required to list every incident of
15 persecution” (internal quotation marks omitted)), the concern
16 being addressed was to avoid reliance on omissions of details,
17 not an omission of the sole incident of persecution, id. at
18 82 (distinguishing between “omissions that tend to show that
19 an applicant has fabricated . . . her claim,” and “omissions
20 that arise merely because an applicant’s oral testimony is
21 more detailed than . . . her written application”). Lin’s
22 omission of her forced abortion from her application—the
23 central element of her claim—belongs to the former category
4
1 and therefore supports the agency’s finding that her
2 application was frivolous. Because the forced abortion was
3 the only incident of persecution relevant to her claim, its
4 wholesale omission from her asylum application was suspect.
5 Cf. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 127 (2d
6 Cir. 2007) (“Testimonial inconsistencies are not sufficient
7 as the sole basis for an adverse credibility finding where
8 the inconsistencies do not concern the basis for the claim of
9 asylum or withholding, but rather matters collateral or
10 ancillary to the claim.” (internal quotation marks omitted)).
11 Further, Lin’s testimony that her mother was detained
12 until Lin surrendered to authorities was in direct conflict
13 with the information provided in her asylum application.
14 Lin’s characterization of this discrepancy as an “omission”
15 downplays its significance given that this conflict
16 necessarily rendered either her testimony or her asylum
17 application, or both, false.
18 Contrary to Lin’s position, the fourth requirement, an
19 opportunity to explain, also was satisfied. First, the IJ
20 explicitly asked Lin why she omitted the forced abortion
21 from her application. And, given that the abortion was the
22 sole basis of her asylum claim, the IJ was not required to
23 accept Lin’s explanation that she did not want her husband
5
1 to find out about the abortion. See Majidi v. Gonzales,
2 430 F.3d 77, 80 (2d Cir. 2005). Nor was the IJ required to
3 credit Lin’s explanation that she was afraid to tell her
4 husband about the abortion because women in China are
5 conservative, particularly because at the time of the
6 abortion, Lin lived openly with her future husband (then
7 boyfriend) in his parents’ home. See Siewe v. Gonzales,
8 480 F.3d 160, 168–69 (2d Cir. 2007) (“[S]peculation that
9 inheres in inference is not ‘bald’ if the inference is made
10 available to the factfinder by record facts, or even a
11 single fact, viewed in the light of common sense and
12 ordinary experience.”). The IJ was not required to
13 question Lin separately about the discrepancy between her
14 asylum application and her testimony concerning her family
15 members’ detention because the inconsistency was “self-
16 evident.” Xian Tuan Ye v. DHS, 446 F.3d 289, 295-96 (2d
17 Cir. 2006).
18 II. Discretion
19 Lin concedes “that the IJ had no obligation to exercise
20 discretion as to the frivolous finding.” Nevertheless, she
21 argues that the IJ erred in concluding, as a matter of law,
22 that discretionary factors are never a valid basis to excuse
23 a frivolous finding. As we have explained, an IJ may choose
6
1 to exercise discretion before entering a frivolous finding.
2 See Mei Juan Zheng v. Holder, 672 F.3d 178, 186 (2d Cir.
3 2012). Here, the IJ acknowledged his authority to exercise
4 discretion but simply declined to exercise it in favor of Lin
5 because discretionary factors did not warrant avoidance of
6 the statutory penalty. This was not error. Cf. id. at 186–
7 87.
8 For the foregoing reasons, the petition for review is
9 DENIED.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe,
12 Clerk of Court
13
7