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.

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

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 16th 4 day of May, two thousand thirteen.

5

6 PRESENT:

7 ROBERT A. KATZMANN,

8 DEBRA ANN LIVINGSTON,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _____________________________________

12

13 JIN LIN,

14 Petitioner, 

15

16 v. 12-96

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Gerald Karikari, New York, New York.

24

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

26 Attorney General; Blair T. O’Connor,

27 Assistant Director; John B. Holt,

28 Trial Attorney, Office of

29 Immigration Litigation, United

30 States Department of Justice,

31 Washington, D.C.
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 GRANTED in part and DENIED in part.

5 Jin Lin, a native and citizen of China, seeks review of

6 a December 14, 2011 order of the BIA affirming the June 23,

7 2010 decision of an Immigration Judge (“IJ”) denying his

8 application for asylum, withholding of removal, and relief

9 under the Convention Against Torture (“CAT”). In re Jin

10 Lin, No. A087 443 580 (B.I.A. Dec. 14, 2011), aff’g No. A087

11 443 580 (Immig. Ct. N.Y. City June 23, 2010). We assume the

12 parties’ familiarity with the underlying facts and

13 procedural history in this case.

14 Under the circumstances of this case, we have reviewed

15 the IJ’s decision as modified by the BIA’s decision. See

16 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

17 (2d Cir. 2005). The applicable standards of review are well

18 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

19 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Because

20 the BIA assumed that Lin’s application was timely, we do not

21 reach the IJ’s finding as to the applicability of the filing

22 deadline in 8 U.S.C. § 1158(a)(2)(B). 

23

2
1 For applications such as Lin’s, governed by the

2 amendments made to the Immigration and Nationality Act by

3 the REAL ID Act of 2005, the agency may, considering the

4 totality of the circumstances, base a credibility finding on

5 the applicant’s “demeanor, candor, or responsiveness,” the

6 plausibility of his account, and inconsistencies in his

7 statements, without regard to whether they go “to the heart

8 of the applicant’s claim.” See 8 U.S.C. 

9 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

10 167 (2d Cir. 2008). 

11 Although we “defer . . . to an IJ’s credibility

12 determination unless, from the totality of the

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

14 could make such an adverse credibility ruling,” Xiu Xia Lin,

15 534 F.3d at 167, the IJ’s adverse credibility determination

16 here is not supported by substantial evidence, as it is

17 based on mischaracterizations of the record, see Tian-Yong

18 Chen v. INS, 359 F.3d 121, 129 (2d Cir. 2004).

19 The IJ based his credibility finding solely on two

20 purported inconsistencies in Lin’s testimony:

21 (1) inconsistent testimony regarding the “diagnosis” of a

22 childhood injury that Lin sustained, which partially

3
1 motivated him to take up the practice of Falun Gong; and

2 (2) Lin’s testimony that he had seen a doctor after being

3 beaten in police custody, followed by his testimony that he

4 had not seen a doctor and had merely purchased medicine to

5 treat his own wounds. First, the precise diagnosis or

6 nature of Lin’s childhood injury was never raised during his

7 testimony, as neither party nor the IJ asked Lin about this

8 topic, and thus, the IJ’s finding that Lin testified

9 inconsistently about his injury is without support in the

10 record. Such a finding is the result of flawed fact-finding

11 and does not “bear a legitimate nexus to the [IJ’s

12 credibility] finding.” Xiu Xia Lin, 534 F.3d at 166; see

13 Singh v. Mukasey, 553 F.3d 207, 213 (2d Cir. 2009).

14 Furthermore, as to the purported inconsistency in Lin’s

15 testimony regarding whether he saw a doctor upon his release

16 from police custody, the complete record supports Lin’s

17 contention that he was briefly confused about the

18 government’s question, and immediately clarified his

19 testimony when the confusion was resolved. While Lin did at

20 one point state that he saw a doctor upon release from

21 detention, the context of Lin’s entire direct and cross

22 examination, which is marked by other moments of

4
1 miscommunication between Lin and the government, suggests

2 that Lin could have been referring to his visits to a doctor

3 years before for his childhood injury. Upon clarifying

4 questions from the government, Lin explained this reference

5 and testified, consistently with previous and later

6 testimony, that after his release from detention he

7 purchased ointment with which he treated his own wounds. 

8 See Tian-Yong Chen, 359 F.3d at 129; Dong Gao v. BIA, 482

9 F.3d 122, 128-34 (2d Cir. 2007) (purported inconsistencies

10 which actually resulted from confusion during questioning,

11 and which were followed by consistent testimony, were

12 improper basis for adverse credibility determination). 

13 Given the ambiguity in the record on this point, Lin’s

14 purported inconsistency regarding seeing a doctor upon

15 release from custody, standing alone, does not constitute

16 substantial evidence to support the IJ’s adverse credibility

17 determination. But the IJ’s credibility determination

18 relied on this purported inconsistency, in conjunction

19 solely with the inconsistency finding regarding Lin’s

20 childhood injury—San inconsistency finding clearly not

21 supported by the record. In such circumstances, we must

22 conclude that there is a realistic possibility that, absent

23 the IJ’s errors, the IJ or BIA might have reached a

5
1 different conclusion. See Cao He Lin v. U.S. Dep’t of

2 Justice, 428 F.3d 391, 401 (2d Cir. 2005). We therefore

3 remand for further proceedings regarding Lin’s eligibility

4 for asylum or withholding of removal under 8 U.S.C.

5 § 1231(b)(3).

6 If upon remand Lin is found to be credible as to his

7 practice of Falun Gong in China or the United States, the

8 agency should address his claim that there is a “pattern or

9 practice” of persecution of Falun Gong practitioners in

10 China, to the extent that reaching this claim is necessary

11 to resolve his eligibility for asylum or withholding of

12 removal. See 8 C.F.R. § 1208.13(b)(2)(iii). Finally,

13 because Lin fails to argue sufficiently that he is entitled

14 to protection under the CAT, his petition is denied as to

15 CAT relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540,

16 545 n.7 (2d Cir. 2005).

17 For the foregoing reasons, the petition for review is

18 GRANTED in part and DENIED in part, and the case REMANDED

19 for further proceedings consistent with this order. As we

20 have completed our review, the pending motion for a stay of

21 removal in this petition is DISMISSED as moot. Any pending

22 request for oral argument in this petition is DENIED in

6
1 accordance with Federal Rule of Appellate Procedure

2 34(a)(2), and Second Circuit Local Rule 34.1(b).

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk

7