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. 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 24 th** **day of October, two thousand thirteen.** 4 5 **PRESENT:** 6 **RICHARD C. WESLEY,** 7 **GERARD E. LYNCH,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **LIQIU LIN,** 13 Petitioner**,** 14 15 **v. 12-3569** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Michael Brown, New York, NY.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Principal Deputy** 25 **Assistant Attorney General; Douglas** 26 **E. Ginsburg, Assistant Director;** 27 **Karen L. Melnik, Trial Attorney;** 28 **Caroline Arbaugh, Law Clerk, Office** 29**of Immigration Litigation, United** 1 **States Department of Justice,** 2 **Washington, D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Liqiu Lin, a native and citizen of the People’s 9 Republic of China, seeks review of a August 21, 2012, 10 decision of the BIA affirming the June 7, 2011, decision of 11 Immigration Judge (“IJ”) Alan A. Vomacka, which denied his 12 application for asylum, withholding of removal, and relief 13 under the Convention Against Torture (“CAT”). In re Liqiu 14 Lin , No. A088 638 868 (B.I.A. Aug. 21, 2012),aff’gNo. A088 15 638 868 (Immig. Ct. N.Y. City June 7, 2011). We assume the 16 parties’ familiarity with the underlying facts and 17 procedural history in this case. 18 Under the circumstances of this case, we have reviewed 19 the IJ’s decision as modified by the BIA, considering only 20 those grounds for the adverse credibility determination that 21 were affirmed by the BIA. See Xue Hong Yang v. U.S. Dep’t 22 of Justice , 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. 23 Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The applicable 24 standards of review are well-established. See8 U.S.C. 25

2§ 1252(b)(4)(B);see also Yanqin Weng v. Holder, 562 F.3d 1 510, 513 (2d Cir. 2009). 2 For applications such as Lin’s, governed by the 3 amendments made to the Immigration and Nationality Act by 4 the REAL ID Act of 2005, the agency may, considering the 5 totality of the circumstances, base a credibility finding on 6 the plausibility of an applicant’s account, as well as 7 inconsistencies in his statements, without regard to whether 8 they go “to the heart of the applicant’s claim.” 8 U.S.C. 9 §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see Xiu Xia Lin v. 10 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam). 11 Furthermore, for purposes of a credibility determination, 12 “[a]n inconsistency and an omission are . . . functionally 13 equivalent.” Xiu Xia Lin , 534 F.3d at 166, n.3. We “defer 14 . . . to an IJ’s credibility determination unless, from the 15 totality of the circumstances, it is plain that no 16 reasonable fact-finder could make such an adverse 17 credibility ruling.” Id . at 167. In this case, the agency 18 reasonably based its adverse credibility finding on the 19 discrepancies between Lin’s asylum application and his 20 testimony, as well as the implausibility of his account, and 21 his demeanor. 22

3Lin asserted in his asylum application that police in 1 China detained him and “interrogated [him] in the police 2 station” about his Falun Gong activities, while he testified 3 that the police interrogated him at home, prior to arresting 4 him, as well. Lin further testified that he sought medical 5 treatment at a private clinic for injuries that he sustained 6 in custody, but did not mention in his asylum application 7 that he received treatment for his injuries. That these 8 discrepancies do not address the heart of Lin’s claim is 9 immaterial. See8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 10 534 F.3d at 167. The agency also reasonably concluded that 11 it was implausible that Lin voluntarily appeared before a 12 divorce court shortly before his departure from China when, 13 at the same time, he asserted that he was in hiding to evade 14 detection by Chinese authorities. See Wensheng Yan v. 15 Mukasey, 509 F.3d 63, 68 (2d Cir. 2007). The IJ’s 16 observations regarding Lin’s demeanor while testifying — 17 that he hesitated and spoke to himself under his breath 18 before answering questions — bolsters the agency’s 19 conclusion. We accord particular deference to the trier of 20 fact’s assessment of demeanor, as he was in the best 21 position to observe Lin’s manner while testifying. See Tu 22 Lin v. Gonzales , 446 F.3d 395, 400 (2d Cir. 2006). 23
4Finally, Lin failed to provide reasonably available 1 evidence to corroborate his claim. During his testimony, he 2 asserted that his parents paid bail in order to secure his 3 release from police custody, but submitted no documentation 4 to confirm the payment. Lin first maintained that his 5 father refused to tell him whether the police had provided a 6 receipt, and then asserted that the Chinese government had 7 retained the receipt. Lin’s asylum application and the 8 letter from his father make no mention of any bail payment 9 at all. Because the agency had already called Lin’s 10 credibility into question due to his inconsistencies and 11 implausibilities, it did not err in relying on the lack of 12 corroboration as further support for the adverse credibility 13 determination. See Biao Yang v. Gonzales , 496 F.3d 268, 273 14 (2d Cir. 2007). Moreover, the agency did not err in 15 rejecting Lin’s varying explanations for his failure to 16 provide the requested corroborating evidence. See Majidi v. 17 Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005). 18 Given the discrepancies, implausibilities, and lack of 19 corroboration, the totality of the circumstances supports 20 the agency’s credibility determination. See8 U.S.C. 21 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167. 22 Moreover, the adverse credibility finding necessarily 23 5precludes success on Lin’s claims for asylum, withholding of 1 removal, and CAT relief, as all three claims share the same 2 factual predicate. See Paul v. Gonzales , 444 F.3d 148, 156 3 (2d Cir. 2006);Xue Hong Yang, 426 F.3d at 523. 4 For the foregoing reasons, the petition for review is 5 DENIED and the pending motion for a stay of removal in this 6 petition is DENIED as moot. 7
FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9 10

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