09 -12 91 -ag

Lin v. Holder BIA Balasquide,IJ A098 940 029 

### UNITE D STATES C OURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDE R

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ONO RA FTER J

ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL R ULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL R ULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PART Y 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. 252 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 1 0 ORDERED, ADJUDGED, AND DECREED, that the petition for review 1 1 is DENIED. 1 2 De Dong Lin, a native and citizen of the People’s 1 3 Republic of China, seeks review of a March 11, 2009 order of 1 4 the BIA, affirming the December 7, 2006 decision of 1 5 Immigration Judge (“IJ”) Javier E. Balasquide, which denied 1 6 his application for asylum, withholding of removal, and 1 7 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 1 9 No. A098 940 029 (Immig. Ct. N.Y. City Dec. 7, 2006). We 2 0 assume the parties’ familiarity with the underlying facts 2 1 and procedural history in this case. 2 2 As an initial matter, although Lin is challenging the 2 3 denial of relief in “asylum-only” proceedings, as opposed to 2 4 an actual removal order, we nevertheless have jurisdiction 2 5 under 8 U.S.C. § 1252(a)(1) because the denial of relief in 2 6 these circumstances is the functional equivalent of a3 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 1 0 the agency’s factual findings, including adverse credibility 1 1 findings, under the substantial evidence standard. 8 U.S.C. 1 2 § 1252(b)(4)(B); see also Shu Wen Sun v. BIA , 510 F.3d 377, 1 3 379 (2d Cir. 2007). We review de novoquestions of law and 1 4 the application of law to undisputed fact. Salimatou Bah v. 15 Mukasey , 529 F.3d 99, 110 (2d Cir. 2008). For applications 1 6 governed by the REAL ID Act of 2005, the agency may, 1 7 considering the totality of the circumstances, base a 1 8 credibility finding on an asylum applicant’s demeanor, the 1 9 plausibility of his or her account, and inconsistencies in 2 0 his or her statements, without regard to whether they go “to 2 1 the heart of the applicant’s claim.” 8 U.S.C. 2 2 § 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 1 0 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 1 2 296, 305 (2d Cir. 2007) (en banc). 1 3 The IJ also reasonably relied on a number of 1 4 inconsistencies in Lin’s testimony. For example, the IJ 1 5 noted that after Lin initially testified that his father 1 6 paid to bail him out of detention using money that was in 1 7 his home, when it was pointed out that the bail amount 1 8 exceeded his father’s yearly income, Lin changed his 1 9 testimony and stated that his father borrowed the money. 2 0 Similarly, the IJ observed that although Lin’s asylum 2 1 application indicated that he went into hiding after he was 2 2 released from detention, he testified that he spent five or5 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 1 0 engage in an independent evaluation of the cold record or 1 1 ask ourselves whether, if we were sitting as fact finders, 1 2 we would credit or discredit an applicant’s testimony”); 13 Siewe v. Gonzales , 480 F.3d 160, 167 (2d Cir. 2007) (“Where 1 4 there are two permissible views of the evidence, the 1 5 factfinder’s choice between them cannot be clearly 1 6 erroneous.”) (quoting Anderson v. Bessemer City, 470 U.S. 1 7 564, 574, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985)). 1 8 The IJ also did not err in drawing an adverse inference 1 9 from Lin’s inability to name his purported roommate of one 2 0 year, the only witness to Lin’s Falun Gong practice in the 2 1 United States, after repeated efforts by the IJ to elicit 2 2 the name. See 8 U.S.C. § 1158(b)(1)(B)(iii). Contrary to 2 3 Lin’s arguments, the reasons for the IJ’s incredulity areWe 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 1 0 U.S.C. § 1158(b)(1)(B)(ii); Biao Yang v. Gonzales , 496 F.3d 1 1 268, 273 (2d Cir. 2007). 1 2 Under the REAL ID Act, these findings were sufficient 1 3 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 1 5 at 167. Because the agency’s adverse credibility 1 6 determination was supported by substantial evidence, it 1 7 reasonably denied Lin’s applications for asylum, withholding 1 8 of removal, and CAT relief, to the extent all three claims 1 9 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).

For the foregoing reasons, the petition for review is 6 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 this petition is DISMISSED as moot. Any 1 0 pending request for 1 1 oral argument in this petition is DENIED in accordance with 1 2 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 3 Circuit Local Rule 34(b). 1 4 FOR THE COURT: 1 5 Catherine O’Hagan Wolfe, Clerk 16 By:___________________________ 17