09-2138-ag

Lin v. Holder

BIA

Weisel, IJ

A093 389 927

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 21 day of April, two thousand nine. st

5

6 PRESENT:

7 PIERRE N. LEVAL,

8 JOSÉ A. CABRANES,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges. 

11 _______________________________________

12

13 NING LIN,

14 Petitioner, 

15

16 v. 09-2138-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 ______________________________________

22

23 FOR PETITIONER: Yu Zhang, Law Office of Fuhao Yang,

24 PLLC, New York.

25
2

1 FOR RESPONDENT: Tony West, Assistant Attorney

2 General; Carl H. McIntyre, Assistant

3 Director; Gary J. Newkirk, Trial

4 Attorney, Office of Immigration

5 Litigation, Civil Division, United

6 States Department of Justice,

7 Washington, D.C.

8

9 UPON DUE CONSIDERATION of this petition for review of a

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

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

12 is DENIED.

13 Petitioner Ning Lin, a native and citizen of the

14 People’s Republic of China, seeks review of an April 23,

15 2009 order of the BIA affirming the March 26, 2008 decision

16 of Immigration Judge (“IJ”) Robert D. Weisel denying his

17 application for asylum, withholding of removal, and relief

18 under the Convention Against Torture (“CAT”). In re Ning

19 Lin, No. A093 389 927 (B.I.A. Apr. 23, 2009), aff’g No. A093

20 389 927 (Immig. Ct. N.Y. City Mar. 26, 2008). We assume the

21 parties’ familiarity with the underlying facts and

22 procedural history in this case.

23 Under the circumstances of this case, we review both

24 the IJ’s and the BIA’s opinions. Jigme Wangchuck v. DHS,

25 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards

26 of review are well-established. 8 U.S.C.
3

1 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

2 167 (2d Cir. 2008) (per curiam).

3 Substantial evidence supports the IJ’s adverse

4 credibility determination. In finding Lin not credible, the

5 IJ found that he testified inconsistently regarding: (1) his

6 wife’s symptoms when she discovered her pregnancy in July

7 2005; (2) whether his wife was sterilized; and (3) how many

8 months pregnant his wife was in October 2005 when she was

9 allegedly forced to undergo an abortion. Lin does not

10 challenge the first of these findings. Nor does he

11 challenge the finding that he was not responsive “during

12 several portions of [his] testimony.” Accordingly, these

13 findings stand as valid bases for the IJ’s adverse

14 credibility determination. See Shunfu Li v. Mukasey, 529

15 F.3d 141, 147-48 (2d Cir. 2008). 

16 Lin argues that the IJ misconstrued the record

17 regarding his testimony about his wife’s sterilization. 

18 Having previously testified that his wife was forcibly

19 sterilized, Lin later testified that his wife had an IUD

20 inserted. When the government’s attorney asked, “So she was

21 not sterilized, is that your answer?,” Lin replied, “No.” 

22 Lin argues that he was responding to the question, “is that

23 your answer,” and not confirming the government’s assertion,
4

1 “so she was not sterilized.” Although a reasonable

2 adjudicator could have reached that conclusion, we do not

3 find that any reasonable factfinder would have been

4 compelled to reach a conclusion contrary to that of the IJ. 

5 See Siewe v. Gonzales, 480 F.3d 160, 167-68 (2d Cir. 2007);

6 see also Ahmed v. Ashcroft, 286 F.3d 611, 612 (2d Cir.

7 2002). Additionally, to the extent Lin argues that he was

8 confused by the line of questioning regarding how many

9 months pregnant his wife was when she allegedly had an

10 abortion, this argument is belied by the record. Indeed,

11 after Lin gave multiple inconsistent answers in response to

12 the same question, the IJ asked whether Lin understood the

13 question, and he responded that he did. Given that the IJ

14 provided Lin an opportunity to explain his answers, it was

15 not improper for the IJ to rely on his inconsistent

16 responses. See Zhi Wei Pang v. BCIS, 448 F.3d 102, 109-10

17 (2d Cir. 2006); Ming Shi Xue v. BIA, 439 F.3d 111, 124 (2d

18 Cir. 2006).

19 Finally, despite Lin’s argument that the “BIA

20 erroneously affirmed the IJ’s adverse credibility finding

21 based on several minor inconsistencies,” under the REAL ID

22 Act, which applies to Lin’s application for relief, “an IJ

23 may rely on any inconsistency or omission in making an
5

1 adverse credibility determination as long as the ‘totality

2 of the circumstances’ establishes that an asylum applicant

3 is not credible.” Xiu Xia Lin, 534 F.3d at 167 (emphasis in

4 original). Given Lin’s inconsistent testimony, substantial

5 evidence supports the IJ’s adverse credibility

6 determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

7 Lin, 534 F.3d at 167. Therefore, the IJ properly denied his

8 applications for asylum, withholding of removal, and CAT

9 relief because the only evidence that Lin would be

10 persecuted or tortured depended on his credibility. See

11 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong

12 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.

13 2005).

14 For the foregoing reasons, the petition for review is

15 DENIED. As we have completed our review, any pending motion

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

17 Any pending request for oral argument in this petition is

18 DENIED in accordance with Federal Rule of Appellate

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

20

21

22 FOR THE COURT: 

23 Catherine O’Hagan Wolfe, Clerk

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