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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 12 th** **day of January, two thousand twelve.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **ROBERT A. KATZMANN,** 8 **RICHARD C. WESLEY,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **XIULUO JIN,** 13 Petitioner**,** 14 15 **v. 11-1681-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Emanuel Liu, Flushing, NY.** 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney** 25 **General; Keith I. McManus, Senior** 26 **Litigation Counsel; Lindsay M.** 27 **Murphy, Trial Attorney; Sheila** 28 **Gholkar, Law Clerk, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 322 UPON 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 DENIED. 4 Xiuluo Jin, a native of North Korea and citizen of the 5 People’s Republic of China, seeks review of an April 6, 6 2011, decision of the BIA affirming the December 17, 2008 7 decision of Immigration Judge (“IJ”) Brigitte Laforest, 8 which denied her application for asylum, withholding of 9 removal, and relief under the Convention Against Torture 10 (“CAT”). In re Xiuluo Jin , No. A093 451 553 (B.I.A. April 11 6, 2011),aff’gNo. A093 451 553 (Immig. Ct. N.Y. City Dec. 12 17, 2008). We assume the parties’ familiarity with the 13 underlying facts and procedural history in this case. 14 Under the circumstances of this case, we have reviewed 15 both the BIA's and the IJ's opinions - or more precisely, we 16 have reviewed the IJ's decision including the portions not 17 explicitly discussed by the BIA.See Yun-Zui Guan v. 18 Gonzales , 432 F.3d 391, 394 (2d Cir. 2005). The applicable 19 standards of review are well-established. See8 U.S.C. 20 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 21 510, 513 (2d Cir. 2009). 22

233 For asylum applications such as Jin’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 an asylum applicant’s “demeanor, candor, or responsiveness,” 5 the plausibility of his or her account, and inconsistencies 6 in her or her statements, without regard to whether they go 7 “to the heart 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). We will “defer... to an IJ’s 10 credibility determination unless, from the totality of the 11 circumstances, it is plain that no reasonable fact-finder 12 could make” such a ruling. Xiu Xia Lin , 534 F.3d at 167. 13 In this case, the agency reasonably based its adverse 14 credibility determination on internal inconsistencies in 15 Jin’s testimony, inconsistencies between Jin’s asylum 16 application and her testimony, inconsistencies between Jin’s 17 testimony and the documentary evidence, and the lack of 18 sufficient corroborating evidence. 19 For example, Jin testified that she had never been 20 arrested, before later stating that she had been arrested 21 and detained for three days in China for her participation 22 in an underground church. Jin then testified inconsistently 234 as to the date of that arrest, and her asylum application 1 omitted any mention of the arrest for her religious 2 activities, which formed the basis for her professed fear of 3 future persecution. These inconsistencies were proper 4 grounds for the IJ’s adverse credibility finding. See 5 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 166. 6 There were also discrepancies as to Jin’s claim that 7 she was forced to have two abortions in 1990. Jin submitted 8 an abortion certificate dated December 16, 1990, stating 9 that she had requested and received an abortion in May 1990, 10 and that she induced another abortion in December 1990 due 11 to her becoming pregnant while using birth control. Jin 12 initially stated that she received the certificate 13 immediately after the May 1990 abortion, before changing her 14 testimony to state that she received it in December. While 15 the IJ initially seemed to indicate that Jin’s testimony was 16 consistent with the certificate as to the date, the IJ 17 ultimately concluded that Jin had testified inconsistently 18 on this point. 19 While the IJ’s seeming initial acceptance of this 20 testimony may not have alerted Jin to the need to clarify or 21 corroborate the date she received the certificate, the IJ 225 did alert Jin to credibility concerns relating to the 1 certificate’s indication that one of Jin’s abortions had 2 been voluntary. Therefore, the need to clarify and 3 corroborate her family planning claim was obvious. See Ming 4 Shi Xue v. Bd. of Immigration Appeals , 439 F.3d 111, 126 (2d 5 Cir. 2006). Additionally, the agency need not give notice 6 and an opportunity to explain a dramatic inconsistency 7 where, as here, the discrepancy went to the very heart of 8 Jin's claim for asylum. Id . at 125. 9 The BIA, in turn, affirmed the IJ’s adverse credibility 10 determination, explicitly addressing Jin’s inconsistencies 11 and omission. Additionally, the BIA reasonably relied on 12 Jin’s lack of sufficient corroborating evidence to find that 13 Jin had failed to rehabilitate her credibility. See Biao 14 Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). Given 15 the totality of the circumstances, including Jin’s 16 inconsistencies, omissions, and lack of sufficient 17 corroborating evidence, substantial evidence supports the 18 agency’s adverse credibility determination. See8 U.S.C. 19 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167. As the 20 only basis for Jin’s claim depended on her credibility, the 21 adverse credibility determination is also dispositive of her 22 request for withholding of removal and CAT relief. See Paul 236 v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006);Xue Hong Yang 1 v. U.S. Dep't of Justice , 426 F.3d 520, 523 (2d Cir. 2005). 2 For the foregoing reasons, the petition for review is 3 DENIED. As we have completed our review, any stay of 4 removal that the Court previously granted in this petition 5 is VACATED, and any pending motion for a stay of removal in 6 this petition is DISMISSED as moot. Any pending request for 7 oral argument in this petition is DENIED in accordance with 8 Federal Rule of Appellate Procedure 34(a)(2) and Second 9 Circuit Local Rule 34.1(b). 10

FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12 13 14