12-689 

Jin v. Holder

BIA

Hom, IJ

A087 445 663

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 25th 4 day of April, two thousand thirteen.

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 PIERRE N. LEVAL,

10 SUSAN L. CARNEY,

11 Circuit Judges.

12 _____________________________________

13

14 GUANG YU JIN,

15 Petitioner, 

16

17 v. 12-689

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Guang Jun Gao, Flushing, NY.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Leslie McKay,

28 Assistant Director; Kelly J. Walls,

29 Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, 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 Guang Yu Jin, a native and citizen of China, seeks

6 review of a February 1, 2012, decision of the BIA affirming

7 the December 1, 2009, decision of Immigration Judge (“IJ”)

8 Sandy K. Hom, which pretermitted her asylum application as

9 untimely, and denied her applications for withholding of

10 removal, and for protection under the Convention Against

11 Torture (“CAT”). In re Guang Yu Jin, No. A087 445 663

12 (B.I.A. Feb. 1, 2012), aff’g No. A087 445 663 (Immig. Ct.

13 N.Y. City Dec. 1, 2009). We assume the parties’ familiarity

14 with the underlying facts and procedural history in this

15 case.

16 Jin challenges the agency’s denial of her asylum

17 application as untimely, asserting that she established

18 changed circumstances excusing her untimely filing. See 

19 8 U.S.C. § 1158(a)(2)(D). Although we lack jurisdiction to

20 review timeliness determinations, see 8 U.S.C. § 1158(a)(3),

21 (a)(2)(B), we retain jurisdiction to review constitutional

22 claims and “questions of law,” 8 U.S.C. § 1252(a)(2)(D).

23 Jin does not raise such a claim or question, however, but

2
1 merely disagrees with the agency’s fact-finding. Thus, we

2 lack jurisdiction to review this claim. See Barco-Sandoval

3 v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008).

4 Jin also challenges the agency’s denial of her

5 application for withholding of removal under 8 U.S.C.

6 § 1231(b)(3). Under the circumstances of this case, we have

7 reviewed the IJ’s decision as modified by the BIA. Yun-Zui

8 Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). For

9 applications such as Jin’s, governed by the amendments made

10 to the Immigration and Nationality Act by the REAL ID Act of

11 2005, the agency may, considering the totality of the

12 circumstances, base a credibility finding on the applicant’s

13 “demeanor, candor, or responsiveness,” the plausibility of

14 his account, and inconsistencies in his statements, without

15 regard to whether they go “to the heart of the applicant’s

16 claim.” See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);

17 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). 

18 We will “defer to an IJ’s credibility determination unless,

19 from the totality of the circumstances, it is plain that no

20 reasonable fact-finder could make” such a ruling. Xiu Xia

21 Lin, 534 F.3d at 167. In this case, the IJ’s adverse

22 credibility determination is supported by substantial

23 evidence. 

3
1 The IJ reasonably based his credibility finding on

2 inconsistencies in Jin’s testimony and documents regarding

3 the political organizations she belonged to in the United

4 States, including discrepancies regarding when she joined

5 these organizations. See 8 U.S.C. §§ 1158(b)(1)(B)(iii),

6 1231(b)(3)(C), Xiu Xia Lin, 534 F.3d at 167. Jin did not

7 demonstrate how alleged difficulties with interpretation at

8 the hearing contributed to these inconsistencies, and did

9 not provide explanations for her inconsistent statements

10 that any reasonable fact-finder would be compelled to

11 accept. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.

12 2005). The IJ also reasonably noted Jin’s failure to

13 provide testimony from any persons in the United States who

14 could corroborate or clarify her political activities. See

15 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

16 Finally, the agency did not err in denying Jin’s

17 application for protection under CAT, as she did not

18 establish that her past experiences in China constituted

19 torture, or that a person in her particular circumstances

20 would face torture if returned to China. See 8 C.F.R.

21 § 1208.18(a); Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d

22 Cir. 2004); Wang v. Ashcroft, 320 F.3d 130, 144 (2d Cir.

23 2003). 

4
1 For the foregoing reasons, the petition for review is

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

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

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

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

6 Any pending request for oral argument in this petition is

7 DENIED in accordance with Federal Rule of Appellate

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

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

11

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