11-817-ag

Lin v. Holder

BIA

Van Wyke, IJ

A097 814 094

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.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 2nd day of February, two thousand twelve.

PRESENT:

JOSÉ A. CABRANES,

DEBRA ANN LIVINGSTON,

GERARD E. LYNCH,

 Circuit Judges. 

_______________________________________

HAI YAN LIN,

Petitioner, 

 v. 11-817-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

______________________________________

FOR PETITIONER: Lee Ratner, Law Offices of Michael

Brown, New York, NY.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Mary Jane Candaux,

Assistant Director; Edward E.
2

Wiggers, Trial Attorney, Office of

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 Hai Yan Lin, a native and citizen of the

People’s Republic of China, seeks review of a February 8,

2011, decision of the BIA affirming the December 31, 2008,

decision of Immigration Judge (“IJ”) William P. Van Wyke,

denying her application for asylum, withholding of removal,

and relief under the Convention Against Torture (“CAT”). In

re Hai Yan Lin, No. A097 814 094 (B.I.A. Feb. 8, 2011),

aff’g No. A097 814 094 (Immig. Ct. N.Y. City Dec. 31, 2008). 

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

Under the circumstances of this case, we have reviewed

both the BIA’s and IJ’s opinions. See Zaman v. Mukasey, 514

F.3d 233, 237 (2d Cir. 2008). “We review the agency's

factual findings, including adverse credibility

determinations, under the substantial evidence standard,

treating them as ‘conclusive unless any reasonable
3

adjudicator would be compelled to conclude to the

contrary.’” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d

Cir. 2008) (quoting 8 U.S.C. § 1252(b)(4)(B)). “When

evaluating credibility determinations for substantial

evidence, we afford particular deference to the IJ,” and

“[w]here the IJ's adverse credibility finding is based on

specific examples of inconsistent statements or

contradictory evidence, a reviewing court will generally not

be able to conclude that a reasonable adjudicator was

compelled to find otherwise.” Id. at 165-66 (internal

quotation marks and ellipsis omitted). 

For asylum applications governed by the REAL ID Act,

such as Lin’s application, the agency may, “[c]onsidering

the totality of the circumstances, . . . base a credibility

finding on the demeanor, candor or responsiveness of the

applicant, . . .the consistency between the applicant’s or

witness’s written or oral statements,. . . without regard to

whether an inconsistency . . . goes to the heart of the

applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

Lin, 534 F.3d at 165-66. 

Substantial evidence supports the agency’s adverse

credibility determination. In finding Lin not credible, the

IJ reasonably relied in part on Lin’s demeanor when
4

testifying about her involvement with Falun Gong. See

8 U.S.C. § 1158(b)(1)(B)(iii). We give particular deference

to the trier of fact’s assessment of demeanor when that

assessment is supported by specific examples in the record,

as here. The IJ cited several examples of instances in

which Lin appeared to be attempting to divert the court’s

attention away from her participation, or lack thereof, in

Falun Gong. See Majidi v. Gonzales, 430 F.3d 77, 81 (2d

Cir. 2005). Because the IJ was in the best position to

discern the impression conveyed by Lin, we afford those

demeanor findings particular deference. See Zhou Yun Zhang

v. INS, 386 F.3d 66, 73-74 (2d Cir. 2004), overruled on

other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494

F.3d 296 (2d Cir. 2007). 

In addition, Lin does not challenge the remaining

findings underlying the agency’s adverse credibility

determination, and they stand as valid bases for that

determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146

(2d Cir. 2008). Nevertheless, a review of these findings

reveals that the agency reasonably relied on Lin’s omission

from her asylum application of her membership in both a

Falun Gong organization and the Communist Party. 

See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at
5

165-66. Furthermore, having questioned Lin’s credibility,

the agency reasonably relied on her failure to provide

sufficient evidence corroborating her involvement with Falun

Gong. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.

2007).

Ultimately, substantial evidence supports the agency’s

finding that Lin was not credible as to her claim of a wellfounded fear of future persecution on account of her

involvement with Falun Gong, and that finding provided an

adequate basis for denying Lin’s application for asylum,

withholding of removal, and CAT relief. See 8 U.S.C.

§ 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F.3d 148, 156

(2d Cir. 2006). Lin does not challenge the agency’s denial

of her application insofar as it was based on domestic

violence she suffered in China. 

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk