13-3888 Lin v. Holder BIA Wright, IJ A200 828 750 

### 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 Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 3 rd** **day of November, two thousand fourteen.** 4 5 **PRESENT:** 6 **ROBERT D. SACK,** 7 **BARRINGTON D. PARKER,** 8 **RICHARD C. WESLEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **YONG LIN, AKA LIN YONG,** 13 Petitioner**,** 14 15 **v. 13-3888** 16 **NAC** 17 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**_____________________________________** 22 23 **FOR PETITIONER: Gary J. Yerman, New York, New York.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 26 **General; Cindy Ferrier, Assistant** 27 **Director; Kimberly A. Burdge, Trial** 28 **Attorney, Office of Immigration** 29**Litigation, United States Department** 1 **of Justice, Washington D.C.** 2 3 UPON DUE CONSIDERATION of this petition for review of a 4 Board of Immigration Appeals (“BIA”) decision, it is hereby 5 ORDERED, ADJUDGED, AND DECREED that the petition for review 6 is DENIED. 7 Petitioner Yong Lin, a native and citizen of the 8 People’s Republic of China, seeks review of a September 23, 9 2013, decision of the BIA, affirming the April 25, 2012, 10 decision of an Immigration Judge (“IJ”), denying his 11 application for asylum, withholding of removal, and relief 12 under the Convention Against Torture (“CAT”). In re Yong 13 Lin, No. A200 828 750 (B.I.A. Sep. 23, 2013), aff’gNo. A200 14 828 750 (Immig. Ct. N.Y. City Apr. 25, 2012). We assume the 15 parties’ familiarity with the underlying facts and 16 procedural history in this case. 17 Under the circumstances of this case, we have reviewed 18 both the BIA’s and IJ’s opinions. See Zaman v. Mukasey, 514 19 F.3d 233, 237 (2d Cir. 2008)(per curiam). The applicable 20 standards of review are well established. See 8 U.S.C. 21 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165- 22 66 (2d Cir. 2008)(per curiam). For asylum applications 23 governed by the REAL ID Act, the agency may, “[c]onsidering 24

2the totality of the circumstances,” base a credibility 1 finding on inconsistencies in the asylum applicant’s 2 statements and other record evidence “without regard to 3 whether” they go “to the heart of the applicant’s claim.” 4 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163- 5 64. Here, substantial evidence supports the agency’s 6 determination that Lin was not credible. 7 There were serious inconsistences in Lin’s various 8 statements. At his hearing before the IJ, he claimed he was 9 arrested and beaten by Chinese officials for supporting 10 Falun Gong, but he failed to mention this arrest in his 11 credible fear interview. Xiu Xia Lin, 534 F.3d at 166-67 & 12 n.3. Lin also testified that he deliberately distributed 13 flyers in support of Falun Gong; however, during his 14 credible fear interview, he told the asylum officer that he 15 was unaware of the nature of the flyers when he distributed 16 them. The IJ reasonably relied on these inconsistences in 17 finding Lin not credible. See Zhou Yun Zhang v. I.N.S. , 386 18 F.3d 66, 74 (2d Cir. 2004), overruled on other grounds by 19 Shi Liang Lin v. U.S. Dep’t of Justice , 494 F.3d 296 (2d 20 Cir. 2007); Xui Xia Lin, 534 F.3d at 167. 21

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3The IJ also reasonably rejected Lin’s various 1 explanations. While Lin’s asylum application was detailed 2 and coherent, his hearing testimony was not. His 3 application stated that the smuggler who helped him enter 4 the United States told him to omit his 2008 arrest when 5 speaking with U.S. officials; in his testimony, however, he 6 admitted that the smuggler told him to tell U.S. officials 7 the story of his arrest. Moreover, the fact that Lin’s 8 friend told him to tell Chinese authorities that he knew 9 nothing about the Falung Gong flyers he distributed does not 10 explain why Lin would tell U.S. authorities the same story 11 if it was not true and he was attempting to obtain asylum. 12 Finally, Lin’s insistence that he could not understand the 13 interpreter at his credible fear interview is implausible 14 because his asylum application provided a detailed 15 explanation for any inconsistencies without ever mentioning 16 such difficulty. Accordingly, the agency did not err in 17 declining to credit Lin’s explanations. See Majidi v. 18 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005). 19 Lin also challenges the reliability of the credible 20 fear interview. Contrary to Lin’s argument, we do not 21 preclude reliance on these interviews; instead, we merely 22

4require the agency to “closely examine each . . . interview 1 before concluding that it represents a sufficiently accurate 2 record of the alien’s statements . . . in determining 3 whether the alien is credible.” Ramsameachire v. Ashcroft , 4 357 F.3d 169, 179 (2d Cir. 2004); Ming Zhang v. Holder, 585 5 F.3d 715, 725 (2d Cir 2009). Here, Lin’s credible fear 6 interview was conducted nearly a month after his arrival 7 with the assistance of an interpreter. He was also 8 represented by counsel, but waived his presence at the 9 interview. Finally, the interview was memorialized in a 10 typewritten document providing the questions the asylum 11 officer asked and the answers Lin gave. Id.Because the 12 interview bears indicia of reliability, the IJ did not err 13 in relying on Lin’s statements at that interview when making 14 the adverse credibility determination. 15 Finally, the IJ reasonably found Lin’s friends’ and 16 relatives’ letters entitled to little weight because the 17 authors were interested witnesses not subject to 18 cross-examination. See Xiao Ji Chen v. U.S. Dep’t of 19 Justice , 471 F.3d 315, 342 (2d Cir. 2006). Lin argues that 20 the agency impermissibly conflated credibility and burden of 21 proof issues in considering his corroborating evidence. 22

5This is incorrect. The agency merely found that, in light 1 of Lin’s incredible testimony, his corroborating evidence 2 was insufficient, standing alone, to carry his burden of 3 proof. See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d 4 Cir. 2007)(per curiam). In any event, the agency’s 5 inconsistency finding alone provides substantial evidence to 6 support its adverse credibility determination. See Xiu Xia 7 Lin, 534 F.3d at 163-64, 166 & n 3. 8 Accordingly, because all of Lin’s claims rely on his 9 credibility, the agency did not err in denying asylum, 10 withholding of removal, and CAT relief because those claims 11 were all based on the same factual predicate. Paul v. 12 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 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 DISMISSED 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 24 25

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