11-5264

Jin v. Holder

BIA

Vomacka, IJ

A089 905 846

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 25th 4 day of March, two thousand thirteen.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 BARRINGTON D. PARKER,

9 RICHARD C. WESLEY,

10 Circuit Judges.

11 _____________________________________

12

13 SHOUCHANG JIN,

14 Petitioner, 

15

16 v. 11-5264

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Thomas V. Massucci, New York, New

24 York. 

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Leslie McKay,

28 Assistant Director; Kristofer R.

29 McDonald, Trial Attorney, Office of
1 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 Shouchang Jin, a native and citizen of the People’s

10 Republic of China, seeks review of a November 21, 2011,

11 decision of the BIA affirming the October 15, 2009, decision

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

13 application for asylum, withholding of removal, and relief

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

15 Shouchang Jin, No. A089 905 846 (B.I.A. Nov. 21, 2011),

16 aff’g No. A089 905 846 (Immig. Ct. N.Y. City Oct. 15, 2009). 

17 We assume the parties’ familiarity with the underlying facts

18 and procedural history in this case.

19 Under the circumstances of this case, we have reviewed

20 the IJ’s decision as supplemented by the BIA. See Yan Chen

21 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

22 applicable standards of review are well-established. See

23 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

24 562 F.3d 510, 513 (2d Cir. 2009). For asylum applications

2
1 such as Jin’s, governed by the amendments made to the

2 Immigration and Nationality Act by the REAL ID Act of 2005,

3 the agency “may rely on any inconsistency or omission in

4 making an adverse credibility determination as long as the

5 ‘totality of the circumstances’ establishes that an asylum

6 applicant is not credible.” Xiu Xia Lin v. Mukasey, 534

7 F.3d 162, 167 (2d Cir. 2008) (per curiam) (emphasis in

8 original) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). 

9 The agency found that Jin’s testimony was incredible,

10 in part, because his testimony that he was hospitalized

11 after a severe beating for his practice of Falun Gong was

12 omitted from both his asylum application and a letter from

13 his parents. Jin contends that his failure to include his

14 hospitalization in his asylum application was not a valid

15 basis for finding him incredible. However, as Jin’s claim

16 that he was hospitalized after being beaten by Chinese

17 police implicated the degree of alleged harm that he

18 suffered, an essential element of his claim, Jian Qiu Liu v.

19 Holder, 632 F.3d 820, 822 (2d Cir. 2011), his argument is

20 misplaced because his omission was sufficiently dramatic to

21 undermine his credibility, Xu Duan Dong v. Ashcroft, 406

22 F.3d 110, 111-12 (2d Cir. 2005). Contrary to Jin’s

3
1 assertion, he was provided an opportunity to explain this

2 omission during his hearing, and failed to provide a

3 compelling explanation. Majidi v. Gonzales, 430 F.3d 77,

4 80-81 (2d Cir. 2005). Jin’s related argument that the

5 agency applied an inappropriately stringent standard in

6 finding him incredible lacks merit because this case is

7 governed by the amendments made to the Immigration and

8 Nationality Act by the REAL ID Act of 2005. Xiu Xia Lin, 534

9 F.3d at 163-64 (finding Secaida-Rosales v. INS, 331 F.3d

10 297, 307 (2d Cir. 2003), superseded by the REAL ID Act). 

11 Jin further faults the agency for requiring additional

12 corroboration and failing to credit photographs he submitted

13 related to his Falun Gong practice. However, the agency

14 permissibly required corroboration of Jin’s hospitalization,

15 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per

16 curiam), and his contradictory testimony about his failure

17 to corroborate that visit does not compel a contrary

18 conclusion, Majidi, 430 F.3d at 80-81. Moreover, the agency

19 permissibly declined to credit photographs allegedly showing

20 Jin’s Falun Gong activities in the United States, especially

21 given his inability to provide testimony or a statement

22 regarding that activity. See Xiao Ji Chen v. U.S. Dep’t of

23 Justice, 471 F.3d 315, 342 (2d Cir. 2006). 

4
1 Accordingly, as the only evidence of a threat to Jin’s

2 life or freedom depended upon his credibility, the adverse

3 credibility determination forecloses his claims for asylum,

4 withholding of removal, and CAT relief. See Paul v.

5 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). 

6 For the foregoing reasons, the petition for review is

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

8 removal that the Court previously granted in this petition

9 is VACATED, and any pending motion for a stay of removal in

10 this petition is DISMISSED as moot. Any pending request for

11 oral argument in this petition is DENIED in accordance with

12 Federal Rule of Appellate Procedure 34(a)(2), and Second

13 Circuit Local Rule 34.1(b).

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk

16

17

5