09-1291-ag

Lin v. Holder

BIA

Balasquide, IJ

A098 940 029

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

4 New York, on the 7 day of January, two thousand ten. th

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 BARRINGTON D. PARKER,

9 RICHARD C. WESLEY,

10 Circuit Judges.

11 _____________________________________

12

13 DE DONG LIN,

14 Petitioner, 

15

16 v. 09-1291-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Yee Ling Poon; Robert Duk-Hwan Kim,

24 New York, New York.

25
2

1 FOR RESPONDENT: Tony West, Assistant Attorney

2 General; John C. Cunningham, Senior

3 Litigation Counsel; Remi Adalemo,

4 Attorney, Office of Immigration

5 Litigation, United States Department

6 of Justice, Washington, D.C.

7

8 UPON DUE CONSIDERATION of this petition for review of a

9 Board of Immigration Appeals (“BIA”) decision, it is hereby

10 ORDERED, ADJUDGED, AND DECREED, that the petition for review

11 is DENIED.

12 De Dong Lin, a native and citizen of the People’s

13 Republic of China, seeks review of a March 11, 2009 order of

14 the BIA, affirming the December 7, 2006 decision of

15 Immigration Judge (“IJ”) Javier E. Balasquide, which denied

16 his application for asylum, withholding of removal, and

17 relief under the Convention Against Torture (“CAT”). In re

18 De Dong Lin, No. A098 940 029 (B.I.A. Mar. 11, 2009), aff’g

19 No. A098 940 029 (Immig. Ct. N.Y. City Dec. 7, 2006). We

20 assume the parties’ familiarity with the underlying facts

21 and procedural history in this case.

22 As an initial matter, although Lin is challenging the

23 denial of relief in “asylum-only” proceedings, as opposed to

24 an actual removal order, we nevertheless have jurisdiction

25 under 8 U.S.C. § 1252(a)(1) because the denial of relief in

26 these circumstances is the functional equivalent of a
3

1 removal order. See Kanacevic v. INS, 448 F.3d 129, 134 (2d

2 Cir. 2006). 

3 When the BIA agrees with the IJ’s conclusion that a

4 petitioner is not credible and, without rejecting any of the

5 IJ’s grounds for decision, emphasizes particular aspects of

6 that decision, we review both the BIA’s and IJ’s opinions --

7 or more precisely, we review the IJ’s decision including the

8 portions not explicitly discussed by the BIA. Yun-Zui Guan

9 v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). We review

10 the agency’s factual findings, including adverse credibility

11 findings, under the substantial evidence standard. 8 U.S.C.

12 § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377,

13 379 (2d Cir. 2007). We review de novo questions of law and

14 the application of law to undisputed fact. Salimatou Bah v.

15 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). For applications

16 governed by the REAL ID Act of 2005, the agency may,

17 considering the totality of the circumstances, base a

18 credibility finding on an asylum applicant’s demeanor, the

19 plausibility of his or her account, and inconsistencies in

20 his or her statements, without regard to whether they go “to

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

22 § 1158(b)(1)(B)(iii); see also Matter of J-Y-C-, 24 I. & N.
4

1 Dec. 260, 265 (BIA 2007). 

2 Analyzed under the REAL ID Act, the agency’s adverse

3 credibility determination was supported by substantial

4 evidence. In finding Lin’s testimony not credible, the IJ

5 relied in part on his demeanor, noting that his testimony

6 was hesitant and unconvincing, and that he was evasive at

7 times and unresponsive. Because the IJ was in the best

8 position to observe Lin’s manner while testifying, we defer

9 to his demeanor finding. See Zhou Yun Zhang v. INS, 386

10 F.3d 66, 73-74 (2d Cir. 2004) overruled in part on other

11 grounds by Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d

12 296, 305 (2d Cir. 2007) (en banc). 

13 The IJ also reasonably relied on a number of

14 inconsistencies in Lin’s testimony. For example, the IJ

15 noted that after Lin initially testified that his father

16 paid to bail him out of detention using money that was in

17 his home, when it was pointed out that the bail amount

18 exceeded his father’s yearly income, Lin changed his

19 testimony and stated that his father borrowed the money. 

20 Similarly, the IJ observed that although Lin’s asylum

21 application indicated that he went into hiding after he was

22 released from detention, he testified that he spent five or
5

1 six days with his parents before fleeing. Lin argues that

2 these and other inconsistencies can be explained away by

3 interpreting the evidence in a different manner. Yet, our

4 review does not permit us to ask whether Lin’s

5 interpretation of the evidence is plausible. Rather, we ask

6 only whether the IJ’s interpretation was erroneous because

7 it was impermissible. Here, we cannot find that it was. 

8 See Xian Tuan Ye v. Dep’t of Homeland Security, 446 F.3d

9 289, 294 (2d Cir. 2006) (“our review does not permit us to

10 engage in an independent evaluation of the cold record or

11 ask ourselves whether, if we were sitting as fact finders,

12 we would credit or discredit an applicant’s testimony”);

13 Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where

14 there are two permissible views of the evidence, the

15 factfinder’s choice between them cannot be clearly

16 erroneous.”) (quoting Anderson v. Bessemer City, 470 U.S.

17 564, 574, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985)). 

18 The IJ also did not err in drawing an adverse inference

19 from Lin’s inability to name his purported roommate of one

20 year, the only witness to Lin’s Falun Gong practice in the

21 United States, after repeated efforts by the IJ to elicit

22 the name. See 8 U.S.C. § 1158(b)(1)(B)(iii). Contrary to

23 Lin’s arguments, the reasons for the IJ’s incredulity are
 We are without jurisdiction to review Lin’s *

unexhausted due process claim. See 8 U.S.C.

§ 1252(d)(1). We are unpersuaded by Lin’s argument that

his due process claim is “subsidiary” to that which he

raised before the BIA. See Gill v. INS, 420 F.3d 82, 87

(2d Cir. 2005).

6

1 evident. See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d

2 Cir. 2007). Moreover, the IJ was not required to credit

3 Lin’s explanation that he referred to his roommate as

4 “little brother.” See Majidi v. Gonzales, 430 F.3d 77, 80-

5 81 (2d Cir. 2005). 

6 Because Lin’s testimony was not otherwise credible, the

7 IJ did not err, under the provisions of the REAL ID Act, in

8 drawing an adverse inference as to Lin’s credibility from

9 his failure to obtain corroboration of his claims. See 8

10 U.S.C. § 1158(b)(1)(B)(ii); Biao Yang v. Gonzales, 496 F.3d

11 268, 273 (2d Cir. 2007).

12 Under the REAL ID Act, these findings were sufficient

13 to support the agency’s adverse credibility determination. 

14 See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin, 534 F.3d

15 at 167. Because the agency’s adverse credibility

16 determination was supported by substantial evidence, it

17 reasonably denied Lin’s applications for asylum, withholding

18 of removal, and CAT relief, to the extent all three claims

19 shared the same factual predicate. See Paul v. Gonzales,

*
7

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

2 Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2006). 

3 Finally, we deem abandoned Lin’s CAT claim based on his

4 purportedly illegal departure from China. See Gui Yin Liu

5 v. INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007). 

6 For the foregoing reasons, the petition for review is

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

8 removal that the Court previously granted in this petition

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

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

11 oral argument in this petition is DENIED in accordance with

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

13 Circuit Local Rule 34(b).

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk

16

17 By:___________________________