16-1987 

Jin v. Sessions 

BIA 

Nelson, IJ 

 A093 458 799 

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.

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

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

1st 4 day of December, two thousand seventeen. 

5 

6 PRESENT: 

7 JOSÉ A. CABRANES,

8 ROBERT D. SACK, 

9 SUSAN L. CARNEY,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 MINGSHUN JIN, AKA MINGSHUN IN, 

14 Petitioner, 

15 

16 v. 16-1987 

17 NAC 

18 JEFFERSON B. SESSIONS III, UNITED 

19 STATES ATTORNEY GENERAL, 

20 Respondent. 

21 _____________________________________ 

22 

23 FOR PETITIONER: Jay Ho Lee, New York, NY. 

24 

25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 

26 Attorney General; M. Jocelyn Lopez 

27 Wright, Senior Litigation 

28 Counsel; Lori B. Warlick, Trial 

29 Attorney, Office of Immigration 

30 Litigation, United States 

31 Department of Justice, 

32 Washington, DC. 
2 

1 UPON DUE CONSIDERATION of this petition for review of a 

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

3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

4 DENIED. 

5 Petitioner Mingshun Jin, a native and citizen of the 

6 People’s Republic of China, seeks review of a June 14, 2016, 

7 decision of the BIA affirming a February 23, 2010, decision of 

8 an Immigration Judge (“IJ”) denying Jin’s application for 

9 asylum, withholding of removal, and relief under the Convention 

10 Against Torture (“CAT”). In re Mingshun Jin, No. A093 458 799 

11 (B.I.A. June 14, 2016), aff’g No. A093 458 799 (Immig. Ct. N.Y. 

12 City Feb. 23, 2010). We assume the parties’ familiarity with 

13 the underlying facts and procedural history in this case. 

14 Under the circumstances of this case, we have reviewed the 

15 IJ’s decision as supplemented and modified by the BIA and thus 

16 review the BIA’s denial of Jin’s motion to remand, but not the 

17 IJ’s discretionary denial of asylum, which the BIA did not 

18 reach. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 

19 2005); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 

20 522 (2d Cir. 2005). The applicable standards of review are well 

21 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 
3 

1 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008); Li Yong Cao v. 

2 U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005). 

3 I. Adverse Credibility Determination 

4 The governing REAL ID Act credibility standard provides 

5 that the agency must “[c]onsider[] the totality of the 

6 circumstances,” and may base a credibility finding on an 

7 applicant’s “demeanor, candor, or responsiveness,” the 

8 plausibility of her account, and inconsistencies in her or her 

9 witness’s statements, “without regard to whether” they go “to 

10 the heart of the applicant’s claim.” 8 U.S.C. 

11 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We 

12 defer . . . to an IJ’s credibility determination unless . . . it 

13 is plain that no reasonable fact-finder could make such an 

14 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. 

15 For the reasons that follow, we conclude that substantial 

16 evidence supports the agency’s finding that Jin was not 

17 credible. 

18 First, the agency reasonably relied on Jin’s omission from 

19 her application of the main points to which she testified. See 

20 id. at 166-67 & n.3 (“An inconsistency and an omission 

21 are . . . functionally equivalent” for credibility 

22 purposes.). Jin does not dispute that she omitted that she was 
4 

1 detained and interrogated in China for harboring a North Korean 

2 refugee or that the police visited her son in August 2008 and 

3 husband in February 2009 regarding her pro-democracy activities 

4 in the United States. 

5 The credibility determination is bolstered by the IJ’s 

6 demeanor finding, to which we defer. See 8 U.S.C. 

7 § 1158(b)(1)(B)(iii); Jin Chen v. U.S. Dep’t of Justice, 426 

8 F.3d 104, 113 (2d Cir. 2005). Notwithstanding Jin’s argument 

9 to the contrary, the record supports the IJ’s finding that there 

10 were long pauses and nonresponsive answers during Jin’s 

11 testimony about the omissions from her application. Moreover, 

12 we find the demeanor finding particularly reliable because it 

13 is directly linked to inconsistencies in the record. See Li 

14 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) 

15 (“We can be still more confident in our review of observations 

16 about an applicant’s demeanor where, as here, they are supported 

17 by specific examples of inconsistent testimony.”). 

18 The agency also reasonably based the credibility 

19 determination on Jin’s vague testimony concerning the 

20 pro-democracy organization she joined in the United States (the 

21 Chinese Democracy and Justice Party (“CDJP”)). See Shunfu Li 

22 v. Mukasey, 529 F.3d 141, 147 (2d Cir. 2008). Although “a 
5 

1 finding of testimonial vagueness cannot, without more, support 

2 an adverse credibility determination unless government counsel 

3 or the IJ first attempts to solicit more detail from the alien,” 

4 id., this requirement has been satisfied. After testifying 

5 that the CDJP advocates violence in certain circumstances, Jin 

6 was unable to identify those circumstances despite repeated 

7 questioning from both the Government and IJ. 

8 Finally, the agency reasonably found Jin’s corroborating 

9 evidence insufficient to rehabilitate her credibility. See 

10 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An 

11 applicant’s failure to corroborate his or her testimony may bear 

12 on credibility, because the absence of corroboration in general 

13 makes an applicant unable to rehabilitate testimony that has 

14 already been called into question.”). Jin did not submit any 

15 corroboration from her son or husband. While Jin takes issue 

16 with the IJ’s finding that she did not sufficiently corroborate 

17 that she belonged to the CDJP by offering a statement from a 

18 fellow member or sufficiently corroborate that her internet 

19 articles would be available to the Chinese government, the 

20 weight accorded to an applicant’s evidence “lie[s] largely 

21 within the discretion of the IJ.” Xiao Ji Chen v. U.S. Dep’t 

22 of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (internal quotation 
6 

1 marks omitted). The IJ therefore did not err in according 

2 minimal weight to Jin’s articles and unauthenticated CDJP 

3 membership card and letter. See id.; Qin Wen Zheng v. 

4 Gonzales, 500 F.3d 143, 148 (2d Cir. 2007). 

5 Given the agency’s foregoing omission, demeanor, 

6 testimonial vagueness, and corroboration findings, the 

7 totality of the circumstances supports the adverse credibility 

8 determination. See Xiu Xia Lin, 534 F.3d at 165-66. A 

9 reasonable adjudicator would not be compelled to conclude 

10 otherwise. Id. at 167. The credibility finding is 

11 dispositive of asylum, withholding of removal, and CAT relief 

12 because all three claims are based on the same discredited 

13 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 

14 (2d Cir. 2006). 

15 II. Motion to Remand 

16 We review the BIA’s denial of remand for abuse of 

17 discretion. Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 

18 156 (2d Cir. 2005). To obtain remand based on ineffective 

19 assistance of counsel, a movant must establish that “counsel’s 

20 performance . . . impinged upon the fundamental fairness of the 

21 hearing.” Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 

22 43, 46 (2d Cir. 2005). This requires a showing that competent 
7 

1 counsel would have acted otherwise and that counsel’s 

2 performance resulted in actual prejudice. See Esposito v. INS, 

3 987 F.2d 108, 111 (2d Cir. 1993). For the reasons that follow, 

4 we conclude that the BIA did not abuse its discretion in denying 

5 remand. 

6 Although Jin continues to fault her attorney for omitting 

7 information from her application, her supporting affidavit to 

8 the BIA did not allege or establish that she provided the 

9 information to her attorney before the hearing. See Esposito, 

10 987 F.2d at 111 (The movant “must allege sufficient facts to 

11 allow this court to infer that competent counsel would have 

12 acted otherwise.”). And while Jin now faults her attorney for 

13 failing to elicit the omitted information, Jin confirmed at the 

14 outset of her hearing that her application was true, correct, 

15 and complete. Nor did Jin show prejudice with respect to the 

16 letters from her husband and son. Although she allegedly 

17 obtained a letter from her husband in 2009, she did not support 

18 her motion with that letter. And a brief letter from her son 

19 was insufficient to rehabilitate her credibility given its lack 

20 of detail and the extensive record support for the adverse 

21 credibility determination. See id.; see also Xiao Ji Chen, 471 

22 F.3d at 342 (holding that the weight accorded to an applicant’s 
8 

1 evidence “lie[s] largely within the discretion of the [agency]” 

2 (internal quotation marks omitted)). 

3 For the foregoing reasons, the petition for review is 

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

5 that the Court previously granted in this petition is VACATED, 

6 and any pending motion for a stay of removal in this petition 

7 is DISMISSED as moot. Any pending request for oral argument 

8 in this petition is DENIED in accordance with Federal Rule of 

9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

10 34.1(b). 

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk