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.

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 27th 4 day of August, two thousand twelve.

5

6 PRESENT:

7 RALPH K. WINTER,

8 JOSÉ A. CABRANES,

9 ROBERT D. SACK,

10 Circuit Judges.

11 _____________________________________

12

13 ZHU LIN,

14 Petitioner, 

15

16 v. 11-3722

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Michael Brown, New York, New York. 

24

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

26 Attorney General; Douglas E.

27 Ginsburg, Assistant Director; Nicole

28 R. Prairie, Trial Attorney, Office

29 of Immigration Litigation, United

30 States Department of Justice,

31 Washington, D.C.
2

1

2 UPON DUE CONSIDERATION of this petition for review of a

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

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

5 is DENIED. 

6 Petitioner Zhu Lin, a native and citizen of the

7 People’s Republic of China, seeks review of an August 22,

8 2011, decision of the BIA affirming the July 15, 2010,

9 decision of Immigration Judge (“IJ”) Helen Sichel, which

10 denied his application for asylum, withholding of removal,

11 and relief under the Convention Against Torture (“CAT”). In

12 re Zhu Lin, No. A098 718 206 (B.I.A. Aug. 22, 2011), aff’g

13 No. A098 718 206 (Immig. Ct. N.Y. City, July 15, 2010). We

14 assume the parties’ familiarity with the underlying facts

15 and procedural history in this case.

16 We have reviewed both the IJ’s and BIA’s decisions “for

17 the sake of completeness.” See Zaman v. Mukasey, 514 F.3d

18 233, 237 (2d Cir. 2008). The applicable standards of review

19 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see

20 also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.

21 2008). 

22 For asylum applications, like Lin’s, governed by the

23 REAL ID Act, the agency may, “[c]onsidering the totality of
3

1 the circumstances, . . . base a credibility finding on the

2 demeanor, candor or responsiveness of the applicant, . . .

3 [and] the consistency between the applicant’s or witness’s

4 written or oral statements, . . . without regard to whether

5 an inconsistency . . . goes to the heart of the applicant’s

6 claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

7 F.3d at 167. We “defer to an IJ’s credibility determination

8 unless, from the totality of the circumstances, it is plain

9 that no reasonable fact-finder could make such an adverse

10 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. 

11 Substantial evidence supports the agency’s adverse

12 credibility determination.

13 The agency based its adverse credibility determination

14 on inconsistencies between Lin’s original asylum

15 application, which omits any mention of Lin’s May 1998

16 altercation with family planning officials, and his amended

17 application, in which he states that family planning

18 officials showed up at his house following his wife’s

19 absence from her gynecological checkups, and dragged him to

20 the family planning office, where they detained and beat

21 him. Lin argues that because the inconsistency is between

22 his original and amended asylum applications, and because
4

1 the IJ accepted the amended application with knowledge of

2 the addition of the May 1998 incident, this inconsistency

3 should not reflect negatively on his credibility. This

4 argument is without merit as the “IJ may rely on any

5 inconsistency” in finding an applicant for asylum not

6 credible. See Xiu Xia Lin, 534 F.3d at 167 (emphasis in

7 original). Furthermore, because Lin’s explanation for the

8 absence of the May 1998 event was itself inconsistent, in

9 that he asserted both that the omission was due to a

10 translation error and alternately that he forgot to include

11 this event in his original application, the IJ was not

12 required to credit it. See Majidi v. Gonzales, 430 F.3d 77,

13 80-81 (2d Cir. 2005) (the agency need not credit an

14 applicant’s explanations for inconsistent testimony unless

15 those explanations would compel a reasonable fact-finder to

16 do so). Because the inconsistency relates to the incident

17 that formed the basis of the claim of past persecution, the

18 totality of the circumstances supports the adverse

19 credibility determination. See 8 U.S.C.

20 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. Because

21 the adverse credibility determination is supported by

22 substantial evidence, the agency did not err in denying
5

1 asylum, withholding of removal, and CAT relief, as all of

2 the claims relied on the same factual predicate. See Paul

3 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang

4 v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005). 

5 For the foregoing reasons, the petition for review is

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

7 removal that the Court previously granted in this petition

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

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

10 oral argument in this petition is DENIED in accordance with

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

12 Circuit Local Rule 34.1(b).

13 FOR THE COURT: 

14 Catherine O’Hagan Wolfe, Clerk