09-21 38 -ag

Lin v. Holder BIA Weisel, IJ A093 389 927 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARYO RDER 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. 252 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 1 0 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 1 ORDERED, ADJUDGED, AND DECREED that the petition for review 1 2 is DENIED. 1 3 Petitioner Ning Lin, a native and citizen of the 1 4 People’s Republic of China, seeks review of an April 23, 1 5 2009 order of the BIA affirming the March 26, 2008 decision 1 6 of Immigration Judge (“IJ”) Robert D. Weisel denying his 1 7 application for asylum, withholding of removal, and relief 1 8 under the Convention Against Torture (“CAT”). In re Ning 19 Lin , No. A093 389 927 (B.I.A. Apr. 23, 2009), aff’gNo. A093 2 0 389 927 (Immig. Ct. N.Y. City Mar. 26, 2008). We assume the 2 1 parties’ familiarity with the underlying facts and 2 2 procedural history in this case. 2 3 Under the circumstances of this case, we review both 2 4 the IJ’s and the BIA’s opinions. Jigme Wangchuck v. DHS , 2 5 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards 2 6 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 1 0 challenge the first of these findings. Nor does he 1 1 challenge the finding that he was not responsive “during 1 2 several portions of [his] testimony.” Accordingly, these 1 3 findings stand as valid bases for the IJ’s adverse 1 4 credibility determination. See Shunfu Li v. Mukasey , 529 1 5 F.3d 141, 147-48 (2d Cir. 2008). 1 6 Lin argues that the IJ misconstrued the record 1 7 regarding his testimony about his wife’s sterilization. 1 8 Having previously testified that his wife was forcibly 1 9 sterilized, Lin later testified that his wife had an IUD 2 0 inserted. When the government’s attorney asked, “So she was 2 1 not sterilized, is that your answer?,” Lin replied, “No.” 2 2 Lin argues that he was responding to the question, “is that 2 3 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 compelledto 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 1 0 abortion, this argument is belied by the record. Indeed, 1 1 after Lin gave multiple inconsistent answers in response to 1 2 the same question, the IJ asked whether Lin understood the 1 3 question, and he responded that he did. Given that the IJ 1 4 provided Lin an opportunity to explain his answers, it was 1 5 not improper for the IJ to rely on his inconsistent 1 6 responses. See Zhi Wei Pang v. BCIS , 448 F.3d 102, 109-10 1 7 (2d Cir. 2006); Ming Shi Xue v. BIA , 439 F.3d 111, 124 (2d 1 8 Cir. 2006). 1 9 Finally, despite Lin’s argument that the “BIA 2 0 erroneously affirmed the IJ’s adverse credibility finding 2 1 based on several minor inconsistencies,” under the REAL ID 2 2 Act, which applies to Lin’s application for relief, “an IJ 2 3 may rely on anyinconsistency or omission in making an5 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 1 0 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. 1 3 2005). 1 4 For the foregoing reasons, the petition for review is 1 5 DENIED. As we have completed our review, any pending motion 1 6 for a stay of removal in this petition is DISMISSED as moot. 1 7 Any pending request for oral argument in this petition is 1 8 DENIED in accordance with Federal Rule of Appellate 1 9 Procedure 34(a)(2), and Second Circuit Local Rule 34(b). 20 21 2 2 FOR THE COURT: 2 3 Catherine O’Hagan Wolfe, Clerk 24 25 26