11-1681-ag 

Jin v. Holder

BIA

Laforest, IJ

A093 451 553 

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 12th 4 day of January, two thousand twelve.

5

6 PRESENT:

7 GUIDO CALABRESI,

8 ROBERT A. KATZMANN,

9 RICHARD C. WESLEY,

10 Circuit Judges. 

11 _______________________________________

12

13 XIULUO JIN,

14 Petitioner, 

15

16 v. 11-1681-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Emanuel Liu, Flushing, NY.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Keith I. McManus, Senior

27 Litigation Counsel; Lindsay M.

28 Murphy, Trial Attorney; Sheila

29 Gholkar, Law Clerk, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
2

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 Xiuluo Jin, a native of North Korea and citizen of the

6 People’s Republic of China, seeks review of an April 6,

7 2011, decision of the BIA affirming the December 17, 2008

8 decision of Immigration Judge (“IJ”) Brigitte Laforest,

9 which denied her application for asylum, withholding of

10 removal, and relief under the Convention Against Torture

11 (“CAT”). In re Xiuluo Jin, No. A093 451 553 (B.I.A. April

12 6, 2011), aff’g No. A093 451 553 (Immig. Ct. N.Y. City Dec.

13 17, 2008). We assume the parties’ familiarity with the

14 underlying facts and procedural history in this case.

15 Under the circumstances of this case, we have reviewed

16 both the BIA's and the IJ's opinions - or more precisely, we

17 have reviewed the IJ's decision including the portions not

18 explicitly discussed by the BIA. See Yun-Zui Guan v.

19 Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable

20 standards of review are well-established. See 8 U.S.C.

21 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

22 510, 513 (2d Cir. 2009). 

23
3

1 For asylum applications such as Jin’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 an asylum applicant’s “demeanor, candor, or responsiveness,”

6 the plausibility of his or her account, and inconsistencies

7 in her or her statements, without regard to whether they go

8 “to the heart 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). We will “defer... to an IJ’s

11 credibility determination unless, from the totality of the

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

13 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167.

14 In this case, the agency reasonably based its adverse

15 credibility determination on internal inconsistencies in

16 Jin’s testimony, inconsistencies between Jin’s asylum

17 application and her testimony, inconsistencies between Jin’s

18 testimony and the documentary evidence, and the lack of

19 sufficient corroborating evidence. 

20 For example, Jin testified that she had never been

21 arrested, before later stating that she had been arrested

22 and detained for three days in China for her participation

23 in an underground church. Jin then testified inconsistently
4

1 as to the date of that arrest, and her asylum application

2 omitted any mention of the arrest for her religious

3 activities, which formed the basis for her professed fear of

4 future persecution. These inconsistencies were proper

5 grounds for the IJ’s adverse credibility finding. See

6 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166. 

7 There were also discrepancies as to Jin’s claim that

8 she was forced to have two abortions in 1990. Jin submitted

9 an abortion certificate dated December 16, 1990, stating

10 that she had requested and received an abortion in May 1990,

11 and that she induced another abortion in December 1990 due

12 to her becoming pregnant while using birth control. Jin

13 initially stated that she received the certificate

14 immediately after the May 1990 abortion, before changing her

15 testimony to state that she received it in December. While

16 the IJ initially seemed to indicate that Jin’s testimony was

17 consistent with the certificate as to the date, the IJ

18 ultimately concluded that Jin had testified inconsistently

19 on this point. 

20 While the IJ’s seeming initial acceptance of this

21 testimony may not have alerted Jin to the need to clarify or

22 corroborate the date she received the certificate, the IJ
5

1 did alert Jin to credibility concerns relating to the

2 certificate’s indication that one of Jin’s abortions had

3 been voluntary. Therefore, the need to clarify and

4 corroborate her family planning claim was obvious. See Ming

5 Shi Xue v. Bd. of Immigration Appeals, 439 F.3d 111, 126 (2d

6 Cir. 2006). Additionally, the agency need not give notice

7 and an opportunity to explain a dramatic inconsistency

8 where, as here, the discrepancy went to the very heart of

9 Jin's claim for asylum. Id. at 125.

10 The BIA, in turn, affirmed the IJ’s adverse credibility

11 determination, explicitly addressing Jin’s inconsistencies

12 and omission. Additionally, the BIA reasonably relied on

13 Jin’s lack of sufficient corroborating evidence to find that

14 Jin had failed to rehabilitate her credibility. See Biao

15 Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Given

16 the totality of the circumstances, including Jin’s

17 inconsistencies, omissions, and lack of sufficient

18 corroborating evidence, substantial evidence supports the

19 agency’s adverse credibility determination. See 8 U.S.C.

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

21 only basis for Jin’s claim depended on her credibility, the

22 adverse credibility determination is also dispositive of her

23 request for withholding of removal and CAT relief. See Paul
6

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

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

3 For the foregoing reasons, the petition for review is

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

5 removal that the Court previously granted in this petition

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

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

8 oral argument in this petition is DENIED in accordance with

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

10 Circuit Local Rule 34.1(b).

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk

13

14