19-140

Lin v. Garland

BIA

Nelson, IJ

A206 899 515

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 the Second Circuit, held at the Thurgood Marshall United 

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

on the 18th day of May, two thousand twenty-one.

PRESENT:

ROBERT A. KATZMANN,

RICHARD C. WESLEY,

SUSAN L. CARNEY,

Circuit Judges.

_____________________________________

WENHUI LIN,

Petitioner,

v. 19-140

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Zhen Liang Li, Law Office of Zhen 

Liang Li, New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

General; Paul Fiorino, Senior 

Litigation Counsel; Sherry D. 

Soanes, Trial Attorney, Office of 
2

Immigration Litigation, United 

States Department of Justice, 

Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a 

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

ORDERED, ADJUDGED, AND DECREED that the petition for review 

is DENIED.

Petitioner Wenhui Lin, a native and citizen of the 

People’s Republic of China, seeks review of a December 20, 

2018, decision of the BIA affirming a November 1, 2017, 

decision of an Immigration Judge (“IJ”) denying asylum, 

withholding of removal, and protection under the Convention 

Against Torture (“CAT”). See In re Wenhui Lin, No. A 206 899 

515 (B.I.A. Dec. 20, 2018), aff’g No. A 206 899 515 (Immig. 

Ct. N.Y. City Nov. 1, 2017). We assume the parties’ 

familiarity with the underlying facts and procedural history.

Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA, i.e., minus the 

inconsistency in the arrest warrant that the BIA declined to 

rely on. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 

F.3d 520, 522 (2d Cir. 2005). We review adverse credibility 

determinations for substantial evidence. See Hong Fei Gao v. 

Sessions, 891 F.3d 67, 76 (2d Cir. 2018); see also 8 U.S.C. 
3

§ 1252(b)(4)(B). 

“Considering the totality of the circumstances, and all 

relevant factors, a trier of fact may base a credibility 

determination on . . . the consistency between the applicant’s 

or witness’s written and oral statements . . . , the internal 

consistency of each such statement, [and] the consistency of 

such statements with other evidence of record . . . without 

regard to whether an inconsistency, inaccuracy, or falsehood 

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

§ 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 534 

F.3d 162, 163–64 (2d Cir. 2008). “We defer . . . to an IJ’s 

credibility determination unless, from the totality of the 

circumstances, it is plain that no reasonable fact-finder 

could make such an adverse credibility ruling.” Xiu Xia Lin, 

534 F.3d at 167; accord Hong Fei Gao, 891 F.3d at 76. The 

agency’s determination that Lin was not credible as to his 

claim that he was arrested, detained, and beaten in China on 

account of his religious practice is supported by substantial 

evidence.

The agency reasonably relied on Lin’s inconsistent 

account of his past persecution as compared to the account in 
4

his friend’s letter. See 8 U.S.C. § 1158(b)(1)(B)(iii); see 

Xiu Xia Lin, 534 F.3d at 167 (upholding agency’s reliance on

discrepancies between the petitioner’s testimony and letters 

from third parties). Lin testified that his friend, Guiluan 

Lin was arrested with him, but his friend’s letter states 

that “Lin, Wenhui was arrested with pastor and other members. 

They were detained . . . , they were asked to report to local 

police . . . , they lost their personal freedom.” Certified 

Admin. Record 29. A plain reading of the letter suggests 

that Lin and others were arrested, but not Guiluan Lin. See 

Hong Fei Gao, 891 F.3d at 78, 81 (stating that direct 

contradictions and inconsistencies are more probative of 

credibility than omissions). The BIA was not required to 

credit an updated letter that Lin presented on appeal--in 

which Guiluan Lin stated that he had also been arrested and 

had not expressed himself well in the prior letter because of 

his limited education--as Lin did not allege any 

mistranslation or explain why a lack of education would have 

resulted in such a mistake. See Majidi v. Gonzales, 430 F.3d 

77, 80-81 (2d Cir. 2005) (“A petitioner must do more than 

offer a plausible explanation for his inconsistent statements 
5

to secure relief; he must demonstrate that a reasonable factfinder would be compelled to credit his testimony.” (internal 

quotation marks and citation omitted)).

The agency also properly relied on the inconsistency 

between Lin’s testimony and his mother’s letter regarding 

when he first told her about going to church, as well as Lin’s

shifting testimony as he attempted to explain the 

discrepancy. See 8 U.S.C. § 1158(b)(1)(B)(iii). Lin’s 

mother wrote that Lin called her the night he first went to 

church to tell her that his friend was taking him to church; 

but Lin testified that he did not tell his mother until after 

he attended; and when confronted with the inconsistency, he 

testified that he had told her before, then that he had told 

her after, before finally stating he had called her twice. 

Although the initial discrepancy was relatively trivial and 

could be attributed to a poor memory, the IJ reasonably 

concluded that Lin’s vacillating and contradictory responses 

undermined his credibility. And given Lin’s ultimately 

detailed testimony about two telephone calls, the IJ did not 

err in rejecting his explanation of a poor memory. See

Majidi, 430 F.3d at 80-81. 
6

Accordingly, we find that the adverse credibility 

determination is supported by substantial evidence. See Hong 

Fei Gao, 891 F.3d at 76; Xiu Xia Lin, 534 F.3d at 165–66.1 

That determination is dispositive of the claims for asylum, 

withholding of removal, and CAT protection because the claims 

were based on the same factual predicate. See Paul v. 

Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006). 

For the foregoing reasons, the petition for review is 

DENIED. All pending motions and applications are DENIED and 

stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

1 We do not rely on the IJ’s finding that Lin failed to provide 

details about his medical treatment, where he testified to the 

treatment he received and that he was kept in the hospital for 

observation after a CT scan. We decline to remand on this basis 

because the findings discussed above constitute substantial 

evidence for the agency’s decision. See Xiao Ji Chen v. U.S. Dep’t 

of Justice, 471 F.3d 315, 338–39 (2d Cir. 2006).