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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 6th 4 day of April, two thousand twelve.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 ROBERT D. SACK,

9 REENA RAGGI,

10 Circuit Judges. 

11 _______________________________________

12

13 Guang Lin, AKA Guang Ren Lin,

14 Petitioner, 

15

16 v. 11-251-ag

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: Tony West, Assistant Attorney

27 General; Nancy E. Friedman, Senior

28 Litigation Counsel; Brooke M.

29 Maurer, Trial Attorney, Office of
2

1 Immigration Litigation, United

2 States Department of Justice,

3 Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED, that the petition for review

8 is DENIED.

9 Guang Lin, a native and citizen of China, seeks review

10 of a December 27, 2010, decision of the BIA affirming the

11 February 25, 2009, decision of Immigration Judge (“IJ”),

12 Annette S. Elstein, which denied his application for asylum

13 and withholding of removal. In re Guang Lin a.k.a. Guang

14 Ren Lin, No. A094 923 470 (B.I.A. Dec. 27, 2010), aff’g No.

15 A094 923 470 (Immig. Ct. N.Y. City Feb. 25, 2009). We

16 assume the parties’ familiarity with the underlying facts

17 and procedural history of this case.

18 We have reviewed the decision of the IJ as supplemented

19 by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

20 Cir. 2005). The applicable standards of review are well21 established. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic

22 v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). 

23 For asylum applications, such as this one, governed by

24 the amendments made to the Immigration and Nationality Act
3

1 by the REAL ID Act of 2005, the agency may, considering the

2 totality of the circumstances, base a credibility finding on

3 an asylum applicant’s “demeanor, candor, or responsiveness,”

4 the plausibility of his or her account, and inconsistencies

5 in his or her statements, without regard to whether they go

6 “to the heart of the applicant’s claim.” See 8 U.S.C.

7 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

8 167 (2d Cir. 2008). We will “defer to an IJ’s credibility

9 determination unless, from the totality of the

10 circumstances, it is plain that no reasonable fact-finder

11 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167. 

12 In this case, the IJ reasonably based her adverse

13 credibility determination on inconsistencies between Lin’s

14 hearing testimony, his asylum application, and his wife’s

15 affidavit, and on lack of detail in his hearing testimony. 

16 At the hearing, Lin testified that he had physically

17 struggled with Chinese government officials when they came

18 to take his wife to be forcibly sterilized, and that

19 officials made yearly visits to his home to order his family

20 to pay the outstanding balance on a fine that the family had

21 incurred for violating China’s family planning policy. 

22
4

1 As the IJ correctly noted, however, Lin never made

2 either of those assertions in his asylum application, and

3 they are likewise not mentioned in his wife’s affidavit. 

4 Lin additionally testified that the smugglers who had helped

5 him enter the United States would pose a danger to his life

6 and the lives of his family members if he were returned to

7 China while still in debt to the smugglers, but, as the IJ

8 correctly noted, he mentioned no specific threat. 

9 Furthermore, although Lin testified that his salary would

10 not be enough to enable him to pay his family planning fine

11 and smuggling debt if he were returned to China, the IJ

12 correctly noted that, in 2002, he made a substantial payment

13 towards his family planning fine that opens to serious

14 question his alleged inability to pay.

15 These inconsistencies and lack of detail, on which the

16 IJ relied, were proper grounds for his adverse credibility

17 finding. See 8 U.S.C. § 1158(b)(1)(B)(iii). As the only

18 evidence of a threat to Lin’s life or freedom depended upon

19 his credibility, the adverse credibility determination

20 necessarily precludes success on the claim for withholding

21 of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d

22 Cir. 2006). 
5

1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, any stay of

3 removal that the Court previously granted in this petition

4 is VACATED, and any pending motion for a stay of removal in

5 this petition is DISMISSED as moot. Any pending request for

6 oral argument in this petition is DENIED in accordance with

7 Federal Rule of Appellate Procedure 34(a)(2), and Second

8 Circuit Local Rule 34.1(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

11

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