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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 15 th** **day of April, two thousand thirteen.** 4 5 **PRESENT:** 6 **DEBRA ANN LIVINGSTON,** 7 **DENNY CHIN,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10 11

**_____________________________________** 12 13 **YINGHUA JIN,** 14 Petitioner**,** 15 16 **v. 11-263** 17 **NAC** 18 **ERIC H. HOLDER, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**______________________________________** 22 23 **FOR PETITIONER: Ronald D. Richey, Rockville, MD** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Thomas B.** 27 **Fatouros, Senior Litigation Counsel;** 28 **Karen Y. Stewart, Attorney, Office** 29 **of Immigration Litigation, U.S.** 30 **Department of Justice, Washington,** 31 **D.C.** 32UPON 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 DISMISSED in part and DENIED in part. 4 Yinghua Jin, a native and citizen of China, seeks 5 review of a December 22, 2010, order of the BIA affirming 6 the January 6, 2009, decision of Immigration Judge (“IJ”) 7 Sandy K. Hom, which denied her application for asylum, 8 withholding of removal, and relief under the Convention 9 Against Torture (“CAT”). In re Yinghua Jin , No. A098 466 10 505 (B.I.A. Dec. 22, 2010), aff’gNo. A098 466 505 (Immig. 11 Ct. N.Y. City Jan. 6, 2009). We assume the parties’ 12 familiarity with the underlying facts and procedural history 13 in this case. 14 **I. Asylum - Pretermission** 15 Jin’s argument that the IJ ignored changed country 16 conditions based on her membership in the Chinese Democracy 17 and Justice Party (CDJP) as a basis for finding her asylum 18 application timely is misplaced as the IJ found her 19 application time-barred only as to past persecution and 20 denied asylum on the merits with respect to her fear of 21 future persecution based on her CDJP activities in the 22

2United States. Further, the BIA, albeit in the context of 1 determining Jin’s withholding claim, considered whether Jin 2 was eligible for asylum and fully addressed the merits of 3 her future persecution claim before denying relief. Thus, 4 as Jin has not raised a colorable constitutional claim or 5 question of law as to the agency’s determination that her 6 asylum application was time-barred, we do not further 7 address the pretermission finding. See 8 U.S.C. 8 §§ 1158(a)(3) (providing that federal courts lack 9 jurisdiction to review agency’s pretermission of asylum as 10 untimely), 1252(a)(2)(D) (preserving review of 11 constitutional claims and questions of law). 12 **II. Asylum, Withholding of Removal, and CAT - Merits** 13 Under the circumstances of this case, we have 14 considered both the IJ’s and the BIA’s opinions “for the 15 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 16 (2d Cir. 2008). The applicable standards of review are 17 well-established. See 8 U.S.C. § 1252(b)(4)(B); see also 18 Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007). 19 For asylum applications, such as this one, governed by 20 the REAL ID Act, the agency may, considering the totality of 21 the circumstances, base a credibility finding on an asylum 22

3applicant’s demeanor, the plausibility of his account, and 1 inconsistencies in his statements, without regard to whether 2 they go “to the heart of the applicant’s claim.” 8 U.S.C. 3 § 1158(b)(1)(B)(iii). Substantial evidence supports the 4 agency’s adverse credibility determination. 5 In finding Jin not credible, the agency reasonably 6 relied on Jin’s demeanor, as well as instances of 7 inconsistent and implausible testimony. Id . We give 8 particular deference to the demeanor finding as the record 9 shows multiple occasions on which Jin paused for a long time 10 prior to responding to questions. See Majidi v. Gonzales , 11 430 F.3d 77, 81 n.1 (2d Cir. 2005). The adverse credibility 12 determination is further supported by specific examples of 13 Jin’s inconsistent and implausible testimony. See Xiu Xia 14 Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per 15 curiam). For example, as the agency found, Jin provided 16 inconsistent testimony with respect to whether her pro17 democracy activities on behalf of the CDJP would have 18 negative repercussions for her family in China. See Xiu Xia 19 Lin, 534 F.3d at 167. Furthermore, the agency reasonably 20 found implausible Jin’s assertion that she did not know the 21 contents of her applications for employment authorization 22

4and for adjustment of status, given that Jin had included 1 with her applications the requisite identification materials 2 and had signed her adjustment of status application. 3
See8 U.S.C. § 1158(b)(1)(B)(iii);see also Wensheng Yan v. 4 Mukasey, 509 F.3d 63, 67 (2d Cir. 2007) (holding that where 5 the IJ’s findings are “tethered to record evidence, and 6 there is nothing else in the record from which a firm 7 conviction of error could properly be derived,” we will not 8 disturb the inherent implausibility finding). A reasonable 9 fact finder would not be compelled to credit Jin’s 10 explanations for her inconsistent and implausible testimony. 11 See Majidi , 430 F.3d at 80-81. 12 Ultimately, given the demeanor, inconsistency, and 13 implausibility findings, the agency’s adverse credibility 14 determination is supported by substantial evidence.See Xiu 15 Xia Lin, 534 F.3d at 165-66. Accordingly, the agency’s 16 denial of relief was not in error as all of the claims 17 shared the same factual predicate. See Paul v. Gonzales , 18 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. Dep’t of 19 Justice , 426 F.3d 520, 523 (2d Cir. 2005). Because the 20 adverse credibility determination is dispositive, we do not 21

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5reach the agency’s alternative finding that, even if 1 credible, Jin failed to meet her burden of proof. 2 For the foregoing reasons, the petition for review is 3 DISMISSED in part and DENIED in part. As we have completed 4 our review, any stay of removal that the Court previously 5 granted in this petition is VACATED, and any pending motion 6 for a stay of removal in this petition is DISMISSED as moot. 7 Any pending request for oral argument in this petition is 8 DENIED in accordance with Federal Rule of Appellate 9 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 10
FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12 13 14

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