11-251-ag Lin v. Holder BIA Elstein, IJ A094 923 470 

### 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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 6 th** **day of April, two thousand twelve.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **ROBERT D. SACK,** 8 **REENA RAGGI,** 9 Circuit Judges **.** 10

**_______________________________________** 11 12 **Guang Lin, AKA Guang Ren Lin,** 13 Petitioner**,** 14 15 **v. 11-251-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Richard Tarzia, Belle Mead, New** 23 **Jersey.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Nancy E. Friedman, Senior** 27 **Litigation Counsel; Brooke M.** 28 **Maurer, Trial Attorney, Office of** 292 **Immigration Litigation, United** 1 **States Department of Justice,** 2 **Washington, D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED, that the petition for review 7 is DENIED. 8 Guang Lin, a native and citizen of China, seeks review 9 of a December 27, 2010, decision of the BIA affirming the 10 February 25, 2009, decision of Immigration Judge (“IJ”), 11 Annette S. Elstein, which denied his application for asylum 12 and withholding of removal. In re Guang Lin a.k.a. Guang 13 Ren Lin , No. A094 923 470 (B.I.A. Dec. 27, 2010), aff’gNo. 14 A094 923 470 (Immig. Ct. N.Y. City Feb. 25, 2009). We 15 assume the parties’ familiarity with the underlying facts 16 and procedural history of this case. 17 We have reviewed the decision of the IJ as supplemented 18 by the BIA. See Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d 19 Cir. 2005). The applicable standards of review are well20 established. See8 U.S.C. § 1252(b)(4)(B); see also Corovic 21 v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). 22 For asylum applications, such as this one, governed by 23 the amendments made to the Immigration and Nationality Act 243 by the REAL ID Act of 2005, the agency may, considering the 1 totality of the circumstances, base a credibility finding on 2 an asylum applicant’s “demeanor, candor, or responsiveness,” 3 the plausibility of his or her account, and inconsistencies 4 in his or her statements, without regard to whether they go 5 “to the heart of the applicant’s claim.” See8 U.S.C. 6 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,534 F.3d 162, 7 167 (2d Cir. 2008). We will “defer to an IJ’s credibility 8 determination unless, from the totality of the 9 circumstances, it is plain that no reasonable fact-finder 10 could make” such a ruling. Xiu Xia Lin , 534 F.3d at 167. 11 In this case, the IJ reasonably based her adverse 12 credibility determination on inconsistencies between Lin’s 13 hearing testimony, his asylum application, and his wife’s 14 affidavit, and on lack of detail in his hearing testimony. 15 At the hearing, Lin testified that he had physically 16 struggled with Chinese government officials when they came 17 to take his wife to be forcibly sterilized, and that 18 officials made yearly visits to his home to order his family 19 to pay the outstanding balance on a fine that the family had 20 incurred for violating China’s family planning policy. 21

224 As the IJ correctly noted, however, Lin never made 1 either of those assertions in his asylum application, and 2 they are likewise not mentioned in his wife’s affidavit. 3 Lin additionally testified that the smugglers who had helped 4 him enter the United States would pose a danger to his life 5 and the lives of his family members if he were returned to 6 China while still in debt to the smugglers, but, as the IJ 7 correctly noted, he mentioned no specific threat. 8 Furthermore, although Lin testified that his salary would 9 not be enough to enable him to pay his family planning fine 10 and smuggling debt if he were returned to China, the IJ 11 correctly noted that, in 2002, he made a substantial payment 12 towards his family planning fine that opens to serious 13 question his alleged inability to pay. 14 These inconsistencies and lack of detail, on which the 15 IJ relied, were proper grounds for his adverse credibility 16 finding. See8 U.S.C. § 1158(b)( 1)(B)(iii). As the only 17 evidence of a threat to Lin’s life or freedom depended upon 18 his credibility, the adverse credibility determination 19 necessarily precludes success on the claim for withholding 20

of removal. See Paul v. Gonzales , 444 F.3d 148, 156 (2d 21 Cir. 2006). 225 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, any stay of 2 removal that the Court previously granted in this petition 3 is VACATED, and any pending motion for a stay of removal in 4 this petition is DISMISSED as moot. Any pending request for 5 oral argument in this petition is DENIED in accordance with 6 Federal Rule of Appellate Procedure 34(a)(2), and Second 7 Circuit Local Rule 34.1(b). 8

FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11 12