11-3722 BIA Lin v. Holder A098 718 206



### 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 27 th** **day of August, two thousand twelve.** 4 5 **PRESENT:** 6 **RALPH K. WINTER,** 7 **JOSÉ A. CABRANES,** 8 **ROBERT D. SACK,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **ZHU LIN,** 13 Petitioner**,** 14 15 **v. 11-3722** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Michael Brown, New York, New York.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 25 **Attorney General; Douglas E.** 26 **Ginsburg, Assistant Director; Nicole** 27 **R. Prairie, Trial Attorney, Office** 28 **of Immigration Litigation, United** 29 **States Department of Justice,** 30 **Washington, D.C.** 312 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 Zhu Lin, a native and citizen of the 6 People’s Republic of China, seeks review of an August 22, 7 2011, decision of the BIA affirming the July 15, 2010, 8 decision of Immigration Judge (“IJ”) Helen Sichel, which 9 denied his application for asylum, withholding of removal, 10 and relief under the Convention Against Torture (“CAT”). In 11 re Zhu Lin, No. A098 718 206 (B.I.A. Aug. 22, 2011),aff’g 12 No. A098 718 206 (Immig. Ct. N.Y. City, July 15, 2010). We 13 assume the parties’ familiarity with the underlying facts 14 and procedural history in this case. 15 We have reviewed both the IJ’s and BIA’s decisions “for 16 the sake of completeness.” See Zaman v. Mukasey, 514 F.3d 17 233, 237 (2d Cir. 2008). The applicable standards of review 18 are well-established. See8 U.S.C. § 1252(b)(4)(B);see 19 also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 20 2008). 21 For asylum applications, like Lin’s, governed by the 22 REAL ID Act, the agency may, “[c]onsidering the totality of 233 the circumstances, . . . base a credibility finding on the 1 demeanor, candor or responsiveness of the applicant, . . . 2 [and] the consistency between the applicant’s or witness’s 3 written or oral statements, . . . without regard to whether 4 an inconsistency . . . goes to the heart of the applicant’s 5 claim.” See8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 6 F.3d at 167. We “defer to an IJ’s credibility determination 7 unless, from the totality of the circumstances, it is plain 8 that no reasonable fact-finder could make such an adverse 9 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. 10 Substantial evidence supports the agency’s adverse 11 credibility determination. 12 The agency based its adverse credibility determination 13 on inconsistencies between Lin’s original asylum 14 application, which omits any mention of Lin’s May 1998 15 altercation with family planning officials, and his amended 16 application, in which he states that family planning 17 officials showed up at his house following his wife’s 18 absence from her gynecological checkups, and dragged him to 19 the family planning office, where they detained and beat 20 him. Lin argues that because the inconsistency is between 21 his original and amended asylum applications, and because 224 the IJ accepted the amended application with knowledge of 1 the addition of the May 1998 incident, this inconsistency 2 should not reflect negatively on his credibility. This 3 argument is without merit as the “IJ may rely on any 4 inconsistency” in finding an applicant for asylum not 5 credible. See Xiu Xia Lin , 534 F.3d at 167 (emphasis in 6 original). Furthermore, because Lin’s explanation for the 7 absence of the May 1998 event was itself inconsistent, in 8 that he asserted both that the omission was due to a 9 translation error and alternately that he forgot to include 10 this event in his original application, the IJ was not 11 required to credit it. See Majidi v. Gonzales , 430 F.3d 77, 12 80-81 (2d Cir. 2005) (the agency need not credit an 13 applicant’s explanations for inconsistent testimony unless 14 those explanations would compel a reasonable fact-finder to 15 do so). Because the inconsistency relates to the incident 16 that formed the basis of the claim of past persecution, the 17 totality of the circumstances supports the adverse 18 credibility determination. See 8 U.S.C. 19 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because 20 the adverse credibility determination is supported by 21 substantial evidence, the agency did not err in denying 225 asylum, withholding of removal, and CAT relief, as all of 1 the claims relied on the same factual predicate. See Paul 2 v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang 3 v. U.S. Dep’t of Justice , 426 F.3d 520, 523 (2d Cir. 2005). 4 For the foregoing reasons, the petition for review is 5 DENIED. As we have completed our review, any stay of 6 removal that the Court previously granted in this petition 7 is VACATED, and any pending motion for a stay of removal in 8 this petition is DISMISSED as moot. Any pending request for 9 oral argument in this petition is DENIED in accordance with 10 Federal Rule of Appellate Procedure 34(a)(2), and Second 11 Circuit Local Rule 34.1(b). 12
FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk 14