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 JA NUARY 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 25 th** **day of April, two thousand thirteen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 Chief Judge, 8 **PIERRE N. LEVAL,** 9 **SUSAN L. CARNEY,** 10 Circuit Judges**.** 11

**_____________________________________** 12 13 **GUANG YU JIN,** 14 Petitioner**,** 15 16 **v. 12-689** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**_____________________________________** 22 23 **FOR PETITIONER: Guang Jun Gao, Flushing, NY.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 26 **Attorney General; Leslie McKay,** 27 **Assistant Director; Kelly J. Walls,** 28 **Trial Attorney, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, 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 Guang Yu Jin, a native and citizen of China, seeks 5 review of a February 1, 2012, decision of the BIA affirming 6 the December 1, 2009, decision of Immigration Judge (“IJ”) 7 Sandy K. Hom, which pretermitted her asylum application as 8 untimely, and denied her applications for withholding of 9 removal, and for protection under the Convention Against 10 Torture (“CAT”). In re Guang Yu Jin, No. A087 445 663 11 (B.I.A. Feb. 1, 2012), aff’gNo. A087 445 663 (Immig. Ct. 12 N.Y. City Dec. 1, 2009). We assume the parties’ familiarity 13 with the underlying facts and procedural history in this 14

case. 15 Jin challenges the agency’s denial of her asylum 16 application as untimely, asserting that she established 17 changed circumstances excusing her untimely filing. See 18 8 U.S.C. § 1158(a)(2)(D). Although we lack jurisdiction to 19 review timeliness determinations, see 8 U.S.C. § 1158(a)(3), 20 (a)(2)(B), we retain jurisdiction to review constitutional 21 claims and “questions of law,” 8 U.S.C. § 1252(a)(2)(D). 22 Jin does not raise such a claim or question, however, but 23
2merely disagrees with the agency’s fact-finding. Thus, we 1 lack jurisdiction to review this claim. See Barco-Sandoval 2 v. Gonzales , 516 F.3d 35, 39 (2d Cir. 2008). 3 Jin also challenges the agency’s denial of her 4 application for withholding of removal under 8 U.S.C. 5 § 1231(b)(3). Under the circumstances of this case, we have 6 reviewed the IJ’s decision as modified by the BIA. Yun-Zui 7 Guan v. Gonzales , 432 F.3d 391, 394 (2d Cir. 2005). For 8 applications such as Jin’s, governed by the amendments made 9 to the Immigration and Nationality Act by the REAL ID Act of 10 2005, the agency may, considering the totality of the 11 circumstances, base a credibility finding on the applicant’s 12 “demeanor, candor, or responsiveness,” the plausibility of 13 his account, and inconsistencies in his statements, without 14 regard to whether they go “to the heart of the applicant’s 15 claim.” See8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); 16 Xiu Xia Lin v. Mukasey,534 F.3d 162, 167 (2d Cir. 2008). 17 We will “defer to an IJ’s credibility determination unless, 18 from the totality of the circumstances, it is plain that no 19 reasonable fact-finder could make” such a ruling. Xiu Xia 20 Lin, 534 F.3d at 167. In this case, the IJ’s adverse 21 credibility determination is supported by substantial 22 evidence

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3The IJ reasonably based his credibility finding on 1 inconsistencies in Jin’s testimony and documents regarding 2 the political organizations she belonged to in the United 3 States, including discrepancies regarding when she joined 4 these organizations. See8 U.S.C. §§ 1158(b)(1)(B)(iii), 5 1231(b)(3)(C), Xiu Xia Lin, 534 F.3d at 167. Jin did not 6 demonstrate how alleged difficulties with interpretation at 7 the hearing contributed to these inconsistencies, and did 8 not provide explanations for her inconsistent statements 9 that any reasonable fact-finder would be compelled to 10 accept. See Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 11 2005). The IJ also reasonably noted Jin’s failure to 12 provide testimony from any persons in the United States who 13 could corroborate or clarify her political activities. See 14 Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). 15 Finally, the agency did not err in denying Jin’s 16 application for protection under CAT, as she did not 17 establish that her past experiences in China constituted 18 torture, or that a person in her particular circumstances 19 would face torture if returned to China. See8 C.F.R. 20 § 1208.18(a); Khouzam v. Ashcroft , 361 F.3d 161, 168 (2d 21 Cir. 2004); Wang v. Ashcroft , 320 F.3d 130, 144 (2d Cir. 22 2003). 23

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

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