12-3569

Lin v. Holder

BIA

Vomacka, IJ

A088 638 868

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 24th 4 day of October, two thousand thirteen.

5

6 PRESENT:

7 RICHARD C. WESLEY,

8 GERARD E. LYNCH,

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges.

11 _____________________________________

12

13 LIQIU LIN,

14 Petitioner, 

15

16 v. 12-3569

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Michael Brown, New York, NY. 

24

25 FOR RESPONDENT: Stuart F. Delery, Principal Deputy

26 Assistant Attorney General; Douglas

27 E. Ginsburg, Assistant Director;

28 Karen L. Melnik, Trial Attorney;

29 Caroline Arbaugh, Law Clerk, Office
1 of Immigration Litigation, United

2 States Department of Justice,

3 Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DENIED.

9 Liqiu Lin, a native and citizen of the People’s

10 Republic of China, seeks review of a August 21, 2012,

11 decision of the BIA affirming the June 7, 2011, decision of

12 Immigration Judge (“IJ”) Alan A. Vomacka, which denied his

13 application for asylum, withholding of removal, and relief

14 under the Convention Against Torture (“CAT”). In re Liqiu

15 Lin, No. A088 638 868 (B.I.A. Aug. 21, 2012), aff’g No. A088

16 638 868 (Immig. Ct. N.Y. City June 7, 2011). We assume the

17 parties’ familiarity with the underlying facts and

18 procedural history in this case.

19 Under the circumstances of this case, we have reviewed

20 the IJ’s decision as modified by the BIA, considering only

21 those grounds for the adverse credibility determination that

22 were affirmed by the BIA. See Xue Hong Yang v. U.S. Dep’t

23 of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.

24 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable

25 standards of review are well-established. See 8 U.S.C.

2
1 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

2 510, 513 (2d Cir. 2009). 

3 For applications such as Lin’s, governed by the

4 amendments made to the Immigration and Nationality Act by

5 the REAL ID Act of 2005, the agency may, considering the

6 totality of the circumstances, base a credibility finding on

7 the plausibility of an applicant’s account, as well as

8 inconsistencies in his statements, without regard to whether

9 they go “to the heart of the applicant’s claim.” 8 U.S.C.

10 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see Xiu Xia Lin v.

11 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam). 

12 Furthermore, for purposes of a credibility determination,

13 “[a]n inconsistency and an omission are . . . functionally

14 equivalent.” Xiu Xia Lin, 534 F.3d at 166, n.3. We “defer

15 . . . to an IJ’s credibility determination unless, from the

16 totality of the circumstances, it is plain that no

17 reasonable fact-finder could make such an adverse

18 credibility ruling.” Id. at 167. In this case, the agency

19 reasonably based its adverse credibility finding on the

20 discrepancies between Lin’s asylum application and his

21 testimony, as well as the implausibility of his account, and

22 his demeanor.

3
1 Lin asserted in his asylum application that police in

2 China detained him and “interrogated [him] in the police

3 station” about his Falun Gong activities, while he testified

4 that the police interrogated him at home, prior to arresting

5 him, as well. Lin further testified that he sought medical

6 treatment at a private clinic for injuries that he sustained

7 in custody, but did not mention in his asylum application

8 that he received treatment for his injuries. That these

9 discrepancies do not address the heart of Lin’s claim is

10 immaterial. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,

11 534 F.3d at 167. The agency also reasonably concluded that

12 it was implausible that Lin voluntarily appeared before a

13 divorce court shortly before his departure from China when,

14 at the same time, he asserted that he was in hiding to evade

15 detection by Chinese authorities. See Wensheng Yan v.

16 Mukasey, 509 F.3d 63, 68 (2d Cir. 2007). The IJ’s

17 observations regarding Lin’s demeanor while testifying —

18 that he hesitated and spoke to himself under his breath

19 before answering questions — bolsters the agency’s

20 conclusion. We accord particular deference to the trier of

21 fact’s assessment of demeanor, as he was in the best

22 position to observe Lin’s manner while testifying. See Tu

23 Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006). 

4
1 Finally, Lin failed to provide reasonably available

2 evidence to corroborate his claim. During his testimony, he

3 asserted that his parents paid bail in order to secure his

4 release from police custody, but submitted no documentation

5 to confirm the payment. Lin first maintained that his

6 father refused to tell him whether the police had provided a

7 receipt, and then asserted that the Chinese government had

8 retained the receipt. Lin’s asylum application and the

9 letter from his father make no mention of any bail payment

10 at all. Because the agency had already called Lin’s

11 credibility into question due to his inconsistencies and

12 implausibilities, it did not err in relying on the lack of

13 corroboration as further support for the adverse credibility

14 determination. See Biao Yang v. Gonzales, 496 F.3d 268, 273

15 (2d Cir. 2007). Moreover, the agency did not err in

16 rejecting Lin’s varying explanations for his failure to

17 provide the requested corroborating evidence. See Majidi v.

18 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). 

19 Given the discrepancies, implausibilities, and lack of

20 corroboration, the totality of the circumstances supports

21 the agency’s credibility determination. See 8 U.S.C.

22 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. 

23 Moreover, the adverse credibility finding necessarily

5
1 precludes success on Lin’s claims for asylum, withholding of

2 removal, and CAT relief, as all three claims share the same

3 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156

4 (2d Cir. 2006); Xue Hong Yang, 426 F.3d at 523. 

5 For the foregoing reasons, the petition for review is

6 DENIED and the pending motion for a stay of removal in this

7 petition is DENIED as moot.

8 FOR THE COURT: 

9 Catherine O’Hagan Wolfe, Clerk

10

6