11-263

Jin v. Holder

BIA

Hom, IJ

A 098 466 505

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 15th 4 day of April, two thousand thirteen.

5

6 PRESENT:

7 DEBRA ANN LIVINGSTON,

8 DENNY CHIN,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11

12 _____________________________________

13

14 YINGHUA JIN,

15 Petitioner, 

16

17 v. 11-263

18 NAC 

19 ERIC H. HOLDER, UNITED STATES 

20 ATTORNEY GENERAL,

21 Respondent.

22 ______________________________________

23

24 FOR PETITIONER: Ronald D. Richey, Rockville, MD

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Thomas B.

28 Fatouros, Senior Litigation Counsel;

29 Karen Y. Stewart, Attorney, Office

30 of Immigration Litigation, U.S.

31 Department of Justice, Washington,

32 D.C.
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 DISMISSED in part and DENIED in part.

5 Yinghua Jin, a native and citizen of China, seeks

6 review of a December 22, 2010, order of the BIA affirming

7 the January 6, 2009, decision of Immigration Judge (“IJ”)

8 Sandy K. Hom, which denied her application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Yinghua Jin, No. A098 466

11 505 (B.I.A. Dec. 22, 2010), aff’g No. A098 466 505 (Immig.

12 Ct. N.Y. City Jan. 6, 2009). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case.

15 I. Asylum - Pretermission

16 Jin’s argument that the IJ ignored changed country

17 conditions based on her membership in the Chinese Democracy

18 and Justice Party (CDJP) as a basis for finding her asylum

19 application timely is misplaced as the IJ found her

20 application time-barred only as to past persecution and

21 denied asylum on the merits with respect to her fear of

22 future persecution based on her CDJP activities in the

2
1 United States. Further, the BIA, albeit in the context of

2 determining Jin’s withholding claim, considered whether Jin

3 was eligible for asylum and fully addressed the merits of

4 her future persecution claim before denying relief. Thus,

5 as Jin has not raised a colorable constitutional claim or

6 question of law as to the agency’s determination that her

7 asylum application was time-barred, we do not further

8 address the pretermission finding. See 8 U.S.C.

9 §§ 1158(a)(3) (providing that federal courts lack

10 jurisdiction to review agency’s pretermission of asylum as

11 untimely), 1252(a)(2)(D) (preserving review of

12 constitutional claims and questions of law).

13 II. Asylum, Withholding of Removal, and CAT - Merits

14 Under the circumstances of this case, we have

15 considered both the IJ’s and the BIA’s opinions “for the

16 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237

17 (2d Cir. 2008). The applicable standards of review are

18 well-established. See 8 U.S.C. § 1252(b)(4)(B); see also

19 Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).

20 For asylum applications, such as this one, governed by

21 the REAL ID Act, the agency may, considering the totality of

22 the circumstances, base a credibility finding on an asylum

3
1 applicant’s demeanor, the plausibility of his account, and

2 inconsistencies in his statements, without regard to whether

3 they go “to the heart of the applicant’s claim.” 8 U.S.C.

4 § 1158(b)(1)(B)(iii). Substantial evidence supports the

5 agency’s adverse credibility determination. 

6 In finding Jin not credible, the agency reasonably

7 relied on Jin’s demeanor, as well as instances of

8 inconsistent and implausible testimony. Id. We give

9 particular deference to the demeanor finding as the record

10 shows multiple occasions on which Jin paused for a long time

11 prior to responding to questions. See Majidi v. Gonzales,

12 430 F.3d 77, 81 n.1 (2d Cir. 2005). The adverse credibility

13 determination is further supported by specific examples of

14 Jin’s inconsistent and implausible testimony. See Xiu Xia

15 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per

16 curiam). For example, as the agency found, Jin provided

17 inconsistent testimony with respect to whether her pro18 democracy activities on behalf of the CDJP would have

19 negative repercussions for her family in China. See Xiu Xia

20 Lin, 534 F.3d at 167. Furthermore, the agency reasonably

21 found implausible Jin’s assertion that she did not know the

22 contents of her applications for employment authorization

4
1 and for adjustment of status, given that Jin had included

2 with her applications the requisite identification materials

3 and had signed her adjustment of status application. 

4 See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Wensheng Yan v.

5 Mukasey, 509 F.3d 63, 67 (2d Cir. 2007) (holding that where

6 the IJ’s findings are “tethered to record evidence, and

7 there is nothing else in the record from which a firm

8 conviction of error could properly be derived,” we will not

9 disturb the inherent implausibility finding). A reasonable

10 fact finder would not be compelled to credit Jin’s

11 explanations for her inconsistent and implausible testimony. 

12 See Majidi, 430 F.3d at 80-81. 

13 Ultimately, given the demeanor, inconsistency, and

14 implausibility findings, the agency’s adverse credibility

15 determination is supported by substantial evidence. See Xiu

16 Xia Lin, 534 F.3d at 165-66. Accordingly, the agency’s

17 denial of relief was not in error as all of the claims

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

19 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. Dep’t of

20 Justice, 426 F.3d 520, 523 (2d Cir. 2005). Because the

21 adverse credibility determination is dispositive, we do not 

22

5
1 reach the agency’s alternative finding that, even if

2 credible, Jin failed to meet her burden of proof.

3 For the foregoing reasons, the petition for review is

4 DISMISSED in part and DENIED in part. As we have completed

5 our review, any stay of removal that the Court previously

6 granted in this petition is VACATED, and any pending motion

7 for a stay of removal in this petition is DISMISSED as moot. 

8 Any pending request for oral argument in this petition is

9 DENIED in accordance with Federal Rule of Appellate

10 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk

13

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