12-96 Lin v. Holder BIA Hom, IJ A087 443 580 

### 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 16 th** **day of May, two thousand thirteen.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 **DEBRA ANN LIVINGSTON,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges **.** 10

**_____________________________________** 11 12 **JIN LIN,** 13 Petitioner**,** 14 15 **v. 12-96** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Gerald Karikari, New York, New York.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 25 **Attorney General; Blair T. O’Connor,** 26 **Assistant Director; John B. Holt,** 27 **Trial Attorney, Office of** 28 **Immigration Litigation, United** 29 **States Department of Justice,** 30 **Washington, D.C.** 31UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is GRANTED in part and DENIED in part. 4 Jin Lin, a native and citizen of China, seeks review of 5 a December 14, 2011 order of the BIA affirming the June 23, 6 2010 decision of an Immigration Judge (“IJ”) denying his 7 application for asylum, withholding of removal, and relief 8 under the Convention Against Torture (“CAT”). In re Jin 9 Lin , No. A087 443 580 (B.I.A. Dec. 14, 2011),aff’gNo. A087 10 443 580 (Immig. Ct. N.Y. City June 23, 2010). We assume the 11 parties’ familiarity with the underlying facts and 12 procedural history in this case. 13 Under the circumstances of this case, we have reviewed 14 the IJ’s decision as modified by the BIA’s decision. See 15 Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 522 16 (2d Cir. 2005). The applicable standards of review are well 17 established. See8 U.S.C. § 1252(b)(4)(B);see also Yanqin 18 Weng v. Holder , 562 F.3d 510, 513 (2d Cir. 2009). Because 19 the BIA assumed that Lin’s application was timely, we do not 20 reach the IJ’s finding as to the applicability of the filing 21 deadline in 8 U.S.C. § 1158(a)(2)(B). 22

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2For applications such as Lin’s, governed by the 1 amendments made to the Immigration and Nationality Act by 2 the REAL ID Act of 2005, the agency may, considering the 3 totality of the circumstances, base a credibility finding on 4 the applicant’s “demeanor, candor, or responsiveness,” the 5 plausibility of his account, and inconsistencies in his 6 statements, without regard to whether they go “to the heart 7 of the applicant’s claim.” See8 U.S.C. 8 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,534 F.3d 162, 9 167 (2d Cir. 2008). 10 Although we “defer . . . to an IJ’s credibility 11 determination unless, from the totality of the 12 circumstances, it is plain that no reasonable fact-finder 13 could make such an adverse credibility ruling,” Xiu Xia Lin , 14 534 F.3d at 167, the IJ’s adverse credibility determination 15 here is not supported by substantial evidence, as it is 16 based on mischaracterizations of the record, see Tian-Yong 17 Chen v. INS , 359 F.3d 121, 129 (2d Cir. 2004). 18 The IJ based his credibility finding solely on two 19 purported inconsistencies in Lin’s testimony: 20 (1) inconsistent testimony regarding the “diagnosis” of a 21 childhood injury that Lin sustained, which partially 22

3motivated him to take up the practice of Falun Gong; and 1 (2) Lin’s testimony that he had seen a doctor after being 2 beaten in police custody, followed by his testimony that he 3 had not seen a doctor and had merely purchased medicine to 4 treat his own wounds. First, the precise diagnosis or 5 nature of Lin’s childhood injury was never raised during his 6 testimony, as neither party nor the IJ asked Lin about this 7 topic, and thus, the IJ’s finding that Lin testified 8 inconsistently about his injury is without support in the 9 record. Such a finding is the result of flawed fact-finding 10 and does not “bear a legitimate nexus to the [IJ’s 11 credibility] finding.” Xiu Xia Lin , 534 F.3d at 166; see 12 Singh v. Mukasey, 553 F.3d 207, 213 (2d Cir. 2009). 13 Furthermore, as to the purported inconsistency in Lin’s 14 testimony regarding whether he saw a doctor upon his release 15 from police custody, the complete record supports Lin’s 16 contention that he was briefly confused about the 17 government’s question, and immediately clarified his 18 testimony when the confusion was resolved. While Lin did at 19 one point state that he saw a doctor upon release from 20 detention, the context of Lin’s entire direct and cross 21 examination, which is marked by other moments of 22

4miscommunication between Lin and the government, suggests 1 that Lin could have been referring to his visits to a doctor 2 years before for his childhood injury. Upon clarifying 3 questions from the government, Lin explained this reference 4 and testified, consistently with previous and later 5 testimony, that after his release from detention he 6 purchased ointment with which he treated his own wounds. 7 See Tian-Yong Chen , 359 F.3d at 129; Dong Gao v. BIA, 482 8 F.3d 122, 128-34 (2d Cir. 2007) (purported inconsistencies 9 which actually resulted from confusion during questioning, 10 and which were followed by consistent testimony, were 11 improper basis for adverse credibility determination). 12 Given the ambiguity in the record on this point, Lin’s 13 purported inconsistency regarding seeing a doctor upon 14 release from custody, standing alone, does not constitute 15 substantial evidence to support the IJ’s adverse credibility 16 determination. But the IJ’s credibility determination 17 relied on this purported inconsistency, in conjunction 18 solely with the inconsistency finding regarding Lin’s 19 childhood injury—

San inconsistency finding clearly not 20 supported by the record. In such circumstances, we must 21 conclude that there is a realistic possibility that, absent 22 the IJ’s errors, the IJ or BIA might have reached a 23 5different conclusion. See Cao He Lin v. U.S. Dep’t of 1 Justice , 428 F.3d 391, 401 (2d Cir. 2005). We therefore 2 remand for further proceedings regarding Lin’s eligibility 3 for asylum or withholding of removal under 8 U.S.C. 4 § 1231(b)(3). 5 If upon remand Lin is found to be credible as to his 6 practice of Falun Gong in China or the United States, the 7 agency should address his claim that there is a “pattern or 8 practice” of persecution of Falun Gong practitioners in 9 China, to the extent that reaching this claim is necessary 10 to resolve his eligibility for asylum or withholding of 11 removal. See8 C.F.R. § 1208.13(b)(2)(iii). Finally, 12 because Lin fails to argue sufficiently that he is entitled 13 to protection under the CAT, his petition is denied as to 14 CAT relief. See Yueqing Zhang v. Gonzales , 426 F.3d 540, 15 545 n.7 (2d Cir. 2005). 16 For the foregoing reasons, the petition for review is 17 GRANTED in part and DENIED in part, and the case REMANDED 18 for further proceedings consistent with this order. As we 19 have completed our review, the pending motion for a stay of 20 removal in this petition is DISMISSED as moot. Any pending 21 request for oral argument in this petition is DENIED in 22

6accordance with Federal Rule of Appellate Procedure 1 34(a)(2), and Second Circuit Local Rule 34.1(b). 2

FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4

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