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- 370 Lin v. Garland BIA Loprest, IJ A 206 260 502 

### 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** 1 **for the Second Circuit, held at the**  **Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 18**  **th da**  **y of May**  **, two thousand twenty** 

**- two.**  4 5 **PRESENT:** 6 **MICHAEL H. PARK ,**  7 **BETH ROBINSON ,**  8 **MYRNA PÉREZ ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **BING QING LIN ,**  13 **Petitioner ,**  14 15
**v. 20** 

**- 370**  16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  Zhou Wang , New York , NY

. 23 24 **FOR RESPONDENT:** Jeffrey Bossert Clark , Acting 25 Assistant Attorney General ; Holly 26 M. Smith , Senior Litigation 27 Counsel ; Jesse D. Lorenz , Trial 282 Attorney, Office of Immigration 1 Litigation, United States 2 Department of Justice, Washington, 3 D C. 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 petitio n for review 7

is DENIED

. 8

Petitioner Bing Qing Lin , a native and citizen of the 9
People’s R epublic of China , seeks review of a January 16, 10

2020, decision of the BIA affirming a n April 2, 2018, decision 11
of an Immigration Judge (“IJ”) denying her application for 12
asylum, withholding of removal, a nd relief under the 13
Convention Against Torture (“CAT”)

. In re Bing Qing Lin , No. 14

A 206 260 502 (B.I.A. Jan. 16, 2020 ), aff’g No. A 206 260 502 15
(Immig. Ct. N.Y. C. Apr. 2, 2018 ). We assume the parties’ 16
familiarity with the underlying facts and procedural history. 17

Under the circumstances of this case, we have consider ed 18
both the IJ’s and the BIA’s opinions “for the sake of 19
completeness.” Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 20

524, 528 (2d Cir. 2006). We review an adverse credibility 21

determination under a “ substantial evidence standard, ” Hong 22

Fei Gao v. Sessions , 891 F.3d 67, 76 (2d Cir. 2018), and “the 233 administrative findings of fact are conclusive unless any 1
reasonable adjudicator would be compelled to conclud e to the 2
contrary,” 8 U.S.C. § 1252(b)(4)(B). 3
“Considering the totality of the circumstances, and all 4
relevant factors, a trier of fact may base a credibility 5

determination on the demeanor, candor, or responsiveness of 6
the applicant or witness,” inconsist encies within and between 7
an applicant’s statements and other evidence, “without regard 8
to whether an inconsistency, inaccuracy, or falsehood goes to 9
the heart of the applicant’s claim, or any other relevant 10

factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “ We de fer therefore 11
to an IJ’s credibility determination unless, from the 12
totality of the circumstances, it is plain that no reasonable 13

fact

- finder could make such an adverse credibility 14
ruling.” Xiu Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 15

2008); accord Hong Fei Gao , 891 F.3d at 76. Substantial 16
evidence supports the agency’s determination that Lin was not 17
credible as to her claim that she was detained and physically 18
abused for attending an unauthorized Christian church

. 19
The agency reasonably relied on inconsistencies 20

among Lin’s statements and evidence regarding the conditions 214 of her confinement, her alleged mistreatment, her reason for 1
leaving China, and her residence in the United States. See 2

8 U.S.C. § 1158(b)(1)(B)(ii i ). Contrary to Lin’ s position , 3

the agency was not required to credit her explanations because 4
they did not necessarily resolve the inconsistencies: “ A 5
petitioner must do more than offer a plausible explanation 6

for h[er] inconsistent statements to secure relief; [s]he 7

must de monstrate that a reasonable fact

- finder would be 8
compelled to credit h[er] testimon y . ” Majidi v. Gonzales , 9

430 F.3d 77, 80 (2d Cir. 2005) ( internal quotation marks 10

omitted) ; s ee also Siewe v. Gonzales , 480 F.3d 160, 167 (2d 11

Cir. 2007) ( “W here there are two permissible view s of the 12

evidence . . . a reviewing court must defer to [the agency’s] 13
choice so long as the deductions are not illogical or 14
implausible.” ( internal quotation marks and citation 15

omitted) ) . Moreover, contrary to her posit ion that the 16

inconsistencies were not material, the inconsistencies 17
regarding her conditions of confinement and past visa 18
application call into question the basis of her asylum claim 19
and her reason for leaving China. Moreover, the agency is 20
permitted to r ely on even non

- material inconsistencies

. S ee 215 Hong Fei Gao , 891 F.3d at 77 (“IJs may rely on non

- material 1
omissions and inconsistencies,” so long as they have a 2
“tendency to suggest a petitioner fabricated his or her 3

claim”) ; Xiu Xia Lin , 534 F.3d at 167 (holding that “an IJ 4
may rely on any inconsistency or omission in making an adverse 5
credibility determinations as long as the ‘totality of the 6
circumstances’ establishes that an asylum applicant is not 7
credible” (quoting 8 U.S.C. § 1158(b )(1)(B)(iii)) )

. 8

The adverse credibility determination is bolstered by 9
the IJ’s demeanor finding, to which we defer and which Lin 10
does not challenge

. See Li Hua Lin v. U.S. Dep’t of Justice , 11

453 F.3d 99, 109 (2d Cir. 2006) (giving “particular 12

deference” t o demeanor finding because “the IJ’s ability to 13
observe . . . demeanor places her in the best position to 14
evaluate whether apparent problems in the . . . testimony 15
suggest a lack of credibility or, rather, can be attributed 16

to an innocent cause such as dif ficulty understanding the 17
question” ); Norton v. Sam’s Club , 145 F.3d 114, 117 (2d Cir. 18
1998) (“Issues not sufficiently argued in the briefs are 19

considered waived and normally will not be addressed on 20
appeal.”). Regardless of waiver, the record supports the 216 demeanor finding given Lin’s struggle to consistently 1

describe her detention. See Li Hua Lin , 453 F.3d at 109 ( “We 2

can be still more confident in our re view of observations 3
about an applicant’s demeanor where , as here, they are 4
supported by specific examples of inconsistent testimony.”). 5
Finally, the agency reasonably concluded that Lin’s 6
corroborating evidence did not rehabilitate her testimony or 7

other wise satisfy her burden of proof. See 8 U.S.C. 8

§ 1158(b)(1)(B)(ii) (“The testimony . . . may be sufficient 9
to sustain the applicant’s burden without corroboration, but 10
only if the applicant satisfies the trier of fact that the 11
applicant’s testimony is cre dible

. . . . In determining 12
whether the applicant has met the . . . burden, the trier of 13
fact may weigh the credible testimony along with other 14

evidence of record.”); Biao Yang v. Gonzales , 496 F.3d 268, 15

273 (2d Cir. 2007) (an asylum applicant’s failure to 16
corroborate testimony may bear on credibility “because the 17
absence of corroboration in general makes an applicant unable 18
to rehabilitate testimony that has already been called into 19
question”). Again, Lin has waived any challenge to the 20

corroboration fi nding. See Norton , 145 F.3d at 117. Even 217 if not waived, t he agency reasonably afforded little weight 1

to Lin’s corroborating evidence because it either contained 2
misspellings on purportedly official documents, was authored 3
by interested witnesses not subject to cross examination , or 4

both. See Y.C. v. Holder , 741 F.3d 324, 332, 334 (2d Cir. 5

2013) ( “We generally defer to the agency’s evaluation of the 6
weight to be afforded an applicant’s documentary evidence

. ”) ; 7

Matter of H

– L

– H & Z

– Y

– Z

– , 25 I. & N. Dec. 209, 215 8

(B.I.A. 2010) (giving diminished evidentiary weight to 9
letters from “relatives and friends,” because they were from 10
interested witnesses not subject to cross

- examination), rev’d 11
on other grounds by Hui Lin Huang v. Ho lder , 677 F.3d 130 (2d 12

Cir. 2012). 13
In sum, given the multiple inconsistencies, demeanor 14
finding, and lack of reliable corroboration, substantial 15
evidence supports the adverse credibility determination. See 16

8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 53 4 F.3d at 167. 17
The adverse credibility determination is dispositive of 18
asylum, withholding of removal , and CAT relief because all 19

three forms of relief were based on the same factual 20
predicate. See Paul v. Gonzales , 444 F.3d 148, 156

– 57 (2d 218 Cir. 2006). 1
For the foregoing reasons, the petition for review is 2

DENIED

. All pending motions and applications are DENIED and 3

stays VACATED. 4

FOR THE COURT: 5 Catherine O ’ Hagan Wolfe , 6 Clerk of Court 7 8