15-377 

Lin v. Lynch 

BIA 

Zagzoug, IJ 

A096 132 956 

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 TO 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 Thurgood Marshall United States 

Courthouse, 40 Foley Square, in the City of New York, on the 

4th day of August, two thousand sixteen. 

PRESENT: 

JON O. NEWMAN,

DENNIS JACOBS, 

RAYMOND J. LOHIER, JR.,

Circuit Judges. 

_____________________________________ 

FENG YUE LIN, 

Petitioner, 

v. 15-377 

 NAC 

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONERS: Gary J. Yerman, New York, NY. 

FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

Assistant Attorney General; Nancy 

Friedman, Senior Litigation 

Counsel; Sharon M. Clay, Trial 

Attorney, Office of Immigration 

Litigation, United States 

Department of Justice, Washington, 

DC. 
2 

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 GRANTED, 

and the matter is REMANDED. 

 Petitioner Feng Yue Lin, a native and citizen of the People’s 

Republic of China, seeks review of a January 23, 2015, decision 

of the BIA, affirming an October 23, 2012, decision of an 

Immigration Judge (“IJ”) denying asylum, withholding of removal, 

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

Feng Yue Lin, No. A096 132 956 (B.I.A. Jan. 23, 2015), aff’g

No. A096 132 956 (Immig. Ct. N.Y. City Oct. 23, 2012). We assume 

the parties’ familiarity with the underlying facts and 

procedural history in this case. 

Under the circumstances of this case, we review the IJ’s 

decision as modified by the BIA. Xue Hong Yang v. U.S. Dep’t 

of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable 

standards of review are well established. 8 U.S.C. 

§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 

(2d Cir. 2008). 

The agency may, “[c]onsidering the totality of the 

circumstances,” base a credibility finding on an asylum 

applicant’s demeanor, the plausibility of her account, and 

inconsistencies in her statements and other record evidence 
3 

“without regard to whether” they go “to the heart of the 

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

534 F.3d at 163-64. Although the record reveals minor instances 

of inconsistencies in the Petitioner’s testimony, some of the 

IJ’s findings are not inconsistencies, some are not supported 

by the record, some involve unwarranted speculation, and some 

aspects of the IJ’s and the BIA’s comments warrant further 

explanation. In combination these deficiencies require a 

remand. 

The IJ expressed concern about the medical certificate from 

the hospital where the alleged abortion was performed. The IJ 

referred to the Department of State profile, which she said, 

“indicates that documents issued upon patient’s request indicate 

a voluntary abortion and not passed out [sic] on the involuntary 

nature of the procedure . . . .” ROA 68. There is no evidence 

that the certificate was issued at Lin’s request. When asked, 

“Why did you get this record?” Lin answered, “When I left the 

hospital, doctor gave it to me.” ROA 122. She was then asked, 

“What were you, what was it for, do you know?” and answered, 

“I don’t know, he gave it to me.” Id. The IJ gave no explanation 

as to why the Department of State profile concerning requested 

documents cast doubt on the testimony of a witness who did not 

make a request. The IJ stated that Lin’s “acquisition of an 
4 

abortion record without even asking for it is suspect.” ROA 

67-68. The IJ did not explain the basis for her speculation that 

Lin’s acquisition of the certificate without asking for it was 

“suspect.” 

The IJ expressed concern that the certificate (Exhibit C, 

ROA 251-52) indicates that it is an “out-patient history,” 

whereas Lin testified that she stayed one night at the hospital 

(ROA 121). The certificate indicates a “Primary outpatient date” 

of December 20, 2010. There is no explanation of why the date 

is called “[p]rimary.” The IJ doubted Lin’s testimony that she 

stayed in the hospital one night and that her mother, who took 

her home the second day, came to visit her the first day. The 

IJ considered Lin’s testimony “not consistent with her mother’s 

letter” (Exhibit J, ROA 292), “which does not mention an 

overnight stay.” ROA 67. There is no inconsistency. The 

mother’s first day visit was not such a significant event that 

it would normally be expected to be mentioned in a letter 

informing the IJ about her daughter’s forced abortion. Moreover, 

the letter states, “When I arrived in the hospital, they already 

gave my daughter an injection to have an induced abortion,” 

(Exhibit J, ROA 292), which can be fairly read to mean that the 

mother visited shortly after the abortion occurred. 

The IJ also noted what she considered inconsistencies in 
5 

Lin’s testimony about her uncle, Michael Lam, and between her 

uncle’s testimony and hers. The IJ recounted Lin’s testimony 

about the day her uncle visited her home in China: “she spent 

time with him”; “she did not really talk to him”; she “changed 

her testimony from only seeing him to have [sic] a conversation 

with him about needing help when she gets to the United States.” 

ROA 53. The IJ characterized Lin’s demeanor during this portion 

of her testimony as “very confused,” noting that “[h]er brows 

were furrowed.” Id. The uncle testified that on that day “She 

just mentioned she wants to go to United States” and “I mention 

I can help her find a job or something, but nothing else.” (ROA 

146-47). If these fragments show an inconsistency at all, it 

is trivial, and it is not clear how furrowed brows render demeanor 

“very confused.” 

The IJ noted Lin’s initial testimony that she “heard” her 

father and her uncle, Michael Lam, talking that day. ROA 54. 

And, the IJ continued, Lin “indicated, changing her testimony 

again, that she did not actually hear the conversation, that 

her father told her later on that he told him [about the 

abortion].” Id. Lin explained, “What I meant was, I heard from 

my father. He told me he already tell uncle about it.” ROA 133. 

Whether Lin overheard her father’s report to her uncle or heard 

the father’s account of the conversation directly from him is 
6 

of trivial, if any, significance. Although inconsistencies 

need not go to the heart of an applicant’s claim, they must have 

at least minimal significance. 

The IJ noted the uncle’s testimony that he and Lin “had 

dinner together once or twice every couple of weeks” and then 

“changed his testimony to say that they see each other whenever 

he has time.” ROA 64. These fragments do not reveal that the 

uncle’s testimony “changed.” 

The IJ characterized Lin’s testimony as stating that “after 

their initial meeting in the United States, she saw . . . Michael 

Lam . . . only when he appeared in Immigration Court to testify 

on her behalf,” referring to the court hearings on April 6, August 

31, and October 2, 2012. ROA 64. This characterization was 

inaccurate. The IJ apparently was referring to a question to 

Lin on cross examination: “The only time you see your uncle is 

in connection with this case?” ROA 141. Lin answered, “No, 

everyday life, too.” Id. Lin also testified, “We often came out 

and see each other.” ROA 140. Lam testified that he and Lin saw 

each other in the United States “[s]ometimes. When I have time 

I go.” ROA 149. 

The IJ doubted Lin’s credibility because she did not know 

the name of Lam’s wife, apparently meaning her first name. Lin 

testified that “[w]e only call [her] auntie.” ROA 136. There 
7 

was no reason to doubt that Lin did not know the first name of 

the uncle’s wife. The wife and the uncle are apparently 

estranged; the uncle testified that he lives in Chinatown, and 

the wife lives on Long Island. ROA 147. He also testified that 

Lin had never met his wife. Id. The IJ also stated, “[Lin’s] 

excuse that she is not close to [Lam’s] children because they 

were in the United States for a long time and they are between 

30 and 40 years old does not make any sense, because she is 

approximately 34 years old and would be in the same range as 

his children.” ROA 65. This mischaracterizes her testimony. Lin 

never testified that she was not close to the uncle’s children 

because they were between 30 and 40 years old. She was asked 

whether she knew their ages and answered “30-something, 

40-something?” and “I don’t know.” ROA 136. When asked, “You 

don’t know the names of his kids?” she answered, “Because they 

left the country early.” Id.

In sum, the IJ’s basis for doubting Lin’s credibility on 

the serious matter of whether her undisputed abortion was 

voluntary or forced is undermined by mischaracterizations of 

the record and assertions of some inconsistencies that do not 

exist and some that are trivial. A remand to develop a more 

reliable basis for determining Lin’s credibility is required. 

Because the IJ has already come to a conclusion that Lin was 
8 

not credible, we will direct that, on remand, the new hearing 

occur before a different IJ to avoid the risk that the IJ who 

conducted the first hearing might not be able to put aside her 

initial conclusion. See Guo-Le Huang v. Gonzales, 453 F.3d 142, 

151 (2d Cir. 2006) (recognizing power of courts to require 

reassignment to avoid appearance of impartiality). 

For the foregoing reasons, the petition for review is 

GRANTED, and the matter is REMANDED for a new hearing consistent 

with this order. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk