15-990 Lin v. Lynch BIA Cheng, IJ A087 772 222 

### 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 TO 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 for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **26 th**  **day of April, two thousand sixteen.** 4 5 **PRESENT:** 6 **RALPH K. WINTER,** 7 **JOSÉ A. CABRANES,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **JIANG LIN,** 13 Petitioner **,** 14 15 **v. 15-990** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Lee Ratner, Law Offices of Michael 23 Brown, New York, NY. 24 25 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; 27 Jennifer P. Williams, Senior 28 Litigation Counsel; Jennifer A. 29 Bowen, Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, D.C. 332 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 is 3

DENIED. 4 Petitioner Jiang Lin, a native and citizen of the People’s 5 Republic of China, seeks review of a March 10, 2015, decision 6 of the BIA, affirming a January 7, 2013, decision of an 7 Immigration Judge (“IJ”) denying Lin’s application for asylum, 8 withholding of removal, and relief under the Convention Against 9 Torture (“CAT”). In re Jiang Lin, No. A087 772 222 (B.I.A. Mar. 10 10, 2015), aff’g No. A087 772 222 (Immig. Ct. N.Y. City Jan. 11 7, 2013). We assume the parties’ familiarity with the 12 underlying facts and procedural history in this case. 13 Under the circumstances of this case, we have considered 14 both the IJ’s and the BIA’s opinions “for the sake of 15 completeness.” Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 16 524, 528 (2d Cir. 2006). The applicable standards of review 17 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin 18 v. Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008). 19 For asylum applications, like Lin’s, governed by the REAL 20 ID Act, the agency may, “[c]onsidering the totality of the 21 circumstances,” base a credibility finding “on the demeanor, 22 candor, or responsiveness of the applicant,” and on 233 inconsistencies between the applicant’s statements and other 1 evidence, “without regard to whether” they go “to the heart of 2 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu 3 Xia Lin , 534 F.3d at 163-64. “We defer . . . to an IJ’s 4 credibility determination unless, from the totality of the 5 circumstances, it is plain that no reasonable fact-finder could 6 make such an adverse credibility ruling.” Xiu Xia Lin , 534 F.3d 7 at 167. 8 Substantial evidence supports the adverse credibility 9 determination, which was based on internal inconsistencies in 10 Lin’s testimony, inconsistencies between his testimony and 11 prior statements, and his demeanor. As an initial matter, the 12 IJ did not err in relying on the record of the credible fear 13 interview. It bore sufficient indicia of reliability. Ming 14 Zhang v. Holder , 585 F.3d 715, 725 (2d Cir. 2009). The record 15 includes a record of questions asked and answers given, the 16 interview was conducted in Lin’s best language, the questions 17 were designed to elicit his asylum claim, and there was no 18 indication that Lin was reluctant to answer questions. Id. at 19 723-25. Although Lin’s border interview did not bear the same 20 level of reliability, even absent consideration of that 21 interview, substantial evidence supports the IJ’s adverse 22 credibility determination. Xiu Xia Lin , 534 F.3d at 167. 234 The record supports the agency’s conclusion that Lin’s 1 testimony was both internally inconsistent and inconsistent 2 with his credible fear interview. He testified that he left 3 China to avoid persecution for distributing Falun Gong flyers, 4 and that he distributed those flyers to spread Falun Gong’s 5 message. However, at his credible fear interview, he stated 6 that he distributed flyers to make money. Lin’s assertion that 7 he was explaining what he told the police is not compelling; 8 he was responding to the question, “why did you want to 9 distribute the flyers.” Majidi v. Gonzales , 430 F.3d 77, 80-81 10 (2d Cir. 2005). 11 The adverse credibility determination is further supported 12 by the IJ’s demeanor finding, to which we defer. Id. at 81 n.1; 13 Li Hua Lin v. U.S. Dep’t of Justice , 453 F.3d 99, 109 (2d Cir. 14 2006) (“We can be still more confident in our review of 15 observations about an applicant’s demeanor where, as here, they 16 are supported by specific examples of inconsistent 17 testimony.”). Lin paused before respo nding to questions about 18 when he met the individual who recruited him to hand out flyers 19 and responded with a series of inconsistent dates. And, he was 20 not responsive when asked how he learned to practice Falun Gong. 21 In light of Lin’s inconsistencies and his demeanor, the 22 totality of the circumstances supports the agency’s adverse 235 credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); 1 Xiu Xia Lin , 534 F.3d at 167. Because asylum, withholding of 2 removal, and CAT relief all relied on the same factual 3 predicate, the adverse credibility determination is 4 dispositive. Paul v. Gonzales , 444 F.3d 148, 156-57 (2d Cir. 5 2006). 6 For the foregoing reasons, the petition for review is 7 DENIED. As we have completed our rev iew, any stay of removal 8 that the Court previously granted in this petition is VACATED, 9 and any pending motion for a stay of removal in this petition 10 is DISMISSED as moot. Any pending request for oral argument 11 in this petition is DENIED in accordance with Federal Rule of 12 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 13 34.1(b). 14

FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16