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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **1 st** **day of December, two thousand seventeen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **ROBERT D. SACK,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **MINGSHUN JIN, AKA MINGSHUN IN,** 13 Petitioner**,** 14 15 **v. 16-1987** 16 **NAC** 17 **JEFFERSON B. SESSIONS III, UNITED** 18 **STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Jay Ho Lee, New York, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; M. Jocelyn Lopez 26 Wright, Senior Litigation 27 Counsel; Lori B. Warlick, Trial 28 Attorney, Office of Immigration 29 Litigation, United States 30 Department of Justice, 31 Washington, DC. 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Mingshun Jin, a native and citizen of the 5 People’s Republic of China, seeks review of a June 14, 2016, 6 decision of the BIA affirming a February 23, 2010, decision of 7 an Immigration Judge (“IJ”) denying Jin’s application for 8 asylum, withholding of removal, and relief under the Convention 9 Against Torture (“CAT”). In re Mingshun Jin, No. A093 458 799 10 (B.I.A. June 14, 2016), aff’gNo. A093 458 799 (Immig. Ct. N.Y. 11 City Feb. 23, 2010). We assume the parties’ familiarity with 12 the underlying facts and procedural history in this case. 13 Under the circumstances of this case, we have reviewed the 14 IJ’s decision as supplemented and modified by the BIA and thus 15 review the BIA’s denial of Jin’s motion to remand, but not the 16 IJ’s discretionary denial of asylum, which the BIA did not 17 reach. See Yan Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 18 2005); Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 19 522 (2d Cir. 2005). The applicable standards of review are well 20 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 213 Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008); Li Yong Cao v. 1 U.S. Dep’t of Justice , 421 F.3d 149, 156 (2d Cir. 2005). 2 I. Adverse Credibility Determination 3 The governing REAL ID Act credibility standard provides 4 that the agency must “[c]onsider[] the totality of the 5 circumstances,” and may base a credibility finding on an 6 applicant’s “demeanor, candor, or responsiveness,” the 7 plausibility of her account, and inconsistencies in her or her 8 witness’s statements, “without regard to whether” they go “to 9 the heart of the applicant’s claim.” 8 U.S.C. 10 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 163-64. “We 11 defer . . . to an IJ’s credibility determination unless . . . it 12 is plain that no reasonable fact-finder could make such an 13 adverse credibility ruling.” Xiu Xia Lin , 534 F.3d at 167. 14 For the reasons that follow, we conclude that substantial 15 evidence supports the agency’s finding that Jin was not 16 credible. 17 First, the agency reasonably relied on Jin’s omission from 18 her application of the main points to which she testified. See 19 id. at 166-67 & n.3 (“An inconsistency and an omission 20 are . . . functionally equivalent” for credibility 21 purposes.). Jin does not dispute that she omitted that she was 224 detained and interrogated in China for harboring a North Korean 1 refugee or that the police visited her son in August 2008 and 2 husband in February 2009 regarding her pro-democracy activities 3 in the United States. 4 The credibility determination is bolstered by the IJ’s 5 demeanor finding, to which we defer. See 8 U.S.C. 6 § 1158(b)(1)(B)(iii); Jin Chen v. U.S. Dep’t of Justice , 426 7 F.3d 104, 113 (2d Cir. 2005). Notwithstanding Jin’s argument 8 to the contrary, the record supports the IJ’s finding that there 9 were long pauses and nonresponsive answers during Jin’s 10 testimony about the omissions from her application. Moreover, 11 we find the demeanor finding particularly reliable because it 12 is directly linked to inconsistencies in the record. See Li 13 Hua Lin v. U.S. Dep’t of Justice , 453 F.3d 99, 109 (2d Cir. 2006) 14 (“We can be still more confident in our review of observations 15 about an applicant’s demeanor where, as here, they are supported 16 by specific examples of inconsistent testimony.”). 17 The agency also reasonably based the credibility 18 determination on Jin’s vague testimony concerning the 19 pro-democracy organization she joined in the United States (the 20 Chinese Democracy and Justice Party (“CDJP”)). See Shunfu Li 21 v. Mukasey , 529 F.3d 141, 147 (2d Cir. 2008). Although “a 225 finding of testimonial vagueness cannot, without more, support 1 an adverse credibility determination unless government counsel 2 or the IJ first attempts to solicit more detail from the alien,” 3 id ., this requirement has been satisfied. After testifying 4 that the CDJP advocates violence in certain circumstances, Jin 5 was unable to identify those circumstances despite repeated 6 questioning from both the Government and IJ. 7 Finally, the agency reasonably found Jin’s corroborating 8 evidence insufficient to rehabilitate her credibility. See 9 Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007) (“An 10 applicant’s failure to corroborate his or her testimony may bear 11 on credibility, because the absence of corroboration in general 12 makes an applicant unable to rehabilitate testimony that has 13 already been called into question.”). Jin did not submit any 14 corroboration from her son or husband. While Jin takes issue 15 with the IJ’s finding that she did not sufficiently corroborate 16 that she belonged to the CDJP by offering a statement from a 17 fellow member or sufficiently corroborate that her internet 18 articles would be available to the Chinese government, the 19 weight accorded to an applicant’s evidence “lie[s] largely 20 within the discretion of the IJ.” Xiao Ji Chen v. U.S. Dep’t 21 of Justice , 471 F.3d 315, 342 (2d Cir. 2006) (internal quotation 226 marks omitted). The IJ therefore did not err in according 1 minimal weight to Jin’s articles and unauthenticated CDJP 2 membership card and letter. See id .; Qin Wen Zheng v. 3 Gonzales , 500 F.3d 143, 148 (2d Cir. 2007). 4 Given the agency’s foregoing omission, demeanor, 5 testimonial vagueness, and corroboration findings, the 6 totality of the circumstances supports the adverse credibility 7 determination. See Xiu Xia Lin , 534 F.3d at 165-66. A 8 reasonable adjudicator would not be compelled to conclude 9 otherwise. Id. at 167. The credibility finding is 10 dispositive of asylum, withholding of removal, and CAT relief 11 because all three claims are based on the same discredited 12 factual predicate. See Paul v. Gonzales , 444 F.3d 148, 156-57 13 (2d Cir. 2006). 14 II. Motion to Remand 15 We review the BIA’s denial of remand for abuse of 16 discretion. Li Yong Cao v. U.S. Dep’t of Justice , 421 F.3d 149, 17 156 (2d Cir. 2005). To obtain remand based on ineffective 18 assistance of counsel, a movant must establish that “counsel’s 19 performance . . . impinged upon the fundamental fairness of the 20 hearing.” Jian Yun Zheng v. U.S. Dep’t of Justice , 409 F.3d 21 43, 46 (2d Cir. 2005). This requires a showing that competent 227 counsel would have acted otherwise and that counsel’s 1 performance resulted in actual prejudice. See Esposito v. INS , 2 987 F.2d 108, 111 (2d Cir. 1993). For the reasons that follow, 3 we conclude that the BIA did not abuse its discretion in denying 4 remand. 5 Although Jin continues to fault her attorney for omitting 6 information from her application, her supporting affidavit to 7 the BIA did not allege or establish that she provided the 8 information to her attorney before the hearing. See Esposito , 9 987 F.2d at 111 (The movant “must allege sufficient facts to 10 allow this court to infer that competent counsel would have 11 acted otherwise.”). And while Jin now faults her attorney for 12 failing to elicit the omitted information, Jin confirmed at the 13 outset of her hearing that her application was true, correct, 14 and complete. Nor did Jin show prejudice with respect to the 15 letters from her husband and son. Although she allegedly 16 obtained a letter from her husband in 2009, she did not support 17 her motion with that letter. And a brief letter from her son 18 was insufficient to rehabilitate her credibility given its lack 19 of detail and the extensive record support for the adverse 20 credibility determination. See id. ; see also Xiao Ji Chen , 471 21 F.3d at 342 (holding that the weight accorded to an applicant’s 228 evidence “lie[s] largely within the discretion of the [agency]” 1 (internal quotation marks omitted)). 2 For the foregoing reasons, the petition for review is 3 DENIED. As we have completed our review, any stay of removal 4 that the Court previously granted in this petition is VACATED, 5 and any pending motion for a stay of removal in this petition 6 is DISMISSED as moot. Any pending request for oral argument 7 in this petition is DENIED in accordance with Federal Rule of 8 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 9 34.1(b). 10
FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12