13-3060 Lin v. Lynch BIA Sichel, IJ A098 971 357 

### 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 12 th** **day of May, two thousand fifteen.** 4 5 **PRESENT:** 6 **RALPH K. WINTER,** 7 **ROSEMARY S. POOLER,** 8 **DENNY CHIN,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **LI CHUN LIN,** 13 Petitioner**,** 14 15 **v. 13-3060** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** ***** 20

**_____________________________________** 21 22 23 **FOR PETITIONER: Corey T. Lee, Law Offices of Corey** 24 **T. Lee, PLLC, New York, NY.** 25 26

***Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is automatically**  **substituted for former Attorney General Eric H. Holder, Jr. FOR RESPONDENT: Stuart F. Delery, Assistant Attorney**  1 **General; Leslie McKay, Assistant** 2 **Director; Sara Bergene, Trial** 3 **Attorney, Office of Immigration** 4 **Litigation, United States Department** 5 **of Justice, Washington, D.C.** 6 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Petitioner Li Chun Lin, a native and citizen of China, 12 seeks review of a July 24, 2013, order of the BIA, affirming 13 the January 12, 2012, decision of an Immigration Judge 14 (“IJ”), which denied asylum, withholding of removal, and 15 relief under the Convention Against Torture (“CAT”). In re 16 Li Chun Lin, No. A098 971 357 (B.I.A. July 24, 2013), aff’g 17 No. A098 971 357 (Immig. Ct. New York City January 12, 18 2012). We assume the parties’ familiarity with the 19 underlying facts and procedural history in this case. 20 Under the circumstances, we have considered both the 21 IJ’s and the BIA’s opinions “for the sake of completeness.” 22 Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). The 23 applicable standards of review are well established. See 8 24 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 25 513 (2d Cir. 2009). 26

2Because Lin filed his asylum application in April 2005, 1 the REAL ID Act does not apply. SeeREAL ID Act of 2005, 2 Div. B of Pub. L. No. 109- 13, 119 Stat. 302, 303 (2005) 3 (codified at 8 U.S.C. § 1158(b)(1)(B)(iii));Matter of S-B- , 4 24 I. & N. Dec. 42, 45 (BIA 2006). In pre-REAL ID Act 5 cases, an adverse credibility determination must be based on 6 “specific, cogent reasons” that “bear a legitimate nexus” to 7 the finding, and any discrepancy must be “substantial” when 8 measured against the record as a whole. See Secaida9 Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003), superseded 10 by the REAL ID Act as recognized in Xiu Xia Lin v. Mukasey, 11 534 F.3d 162, 163-64 (2d Cir. 2008). 12 Substantial evidence supports the agency’s adverse 13 credibility determination. Lin omitted from his asylum 14 application and supplementary statement his claim that he 15 was beaten and denied sufficient food and medical care while 16 detained for two days at a family planning office. This 17 information was also omitted from his wife's statement. 18 Minor and isolated discrepancies may be insufficient to 19 support an adverse credibility finding. See Diallo v. INS, 20 232 F.3d 279, 285-86 (2d Cir. 2000); see also Xiu Xia Lin, 21 534 F.3d at 166-67 n.3 (noting that inconsistencies and 22

3omissions are “functionally equivalent”). As Lin’s claim 1 was predicated on his alleged mistreatment by family 2 planning officials, both the incident, and Lin's omission of 3 it, went to the heart of his asylum claim.See Beskovic v. 4 Gonzales , 467 F.3d 223, 226 n.3 (2d Cir. 2006) (noting that 5 the Court had previously held that two brief detentions 6 without physical mistreatment did not constitute 7 persecution). Accordingly, a “legitimate nexus” existed 8 between his claim and the omission. See Secaida-Rosales v. 9

INS, 331 F.3d at 307-08. 10 Lin’s argument that his omission of the incident was 11 not material because the case law at the time he filed his 12 asylum application allowed him to establish past persecution 13 based on his wife's forced abortion alone is unavailing. 14 See Matter of C-Y-Z- , 21 I&N Dec. 915 (BIA 1997) (finding 15 applicants eligible for asylum based on a spouse’s 16 sterilization); Shi Liang Lin v. U.S. Dep’t of Justice , 494 17 F.3d 296, 308 (2d Cir. 2007) (explicitly rejecting Matter of 18

C-Y-Z- and concluding, inter alia , that “applicants can 19 become candidates for asylum relief only based on 20 persecution that they themselves have suffered or must 21 suffer”). As the agency noted, Lin would reasonably have 22

4been expected to include the alleged beating, insufficient 1 food, and denial of medical care in his claim because they 2 were not “ancillary or tangential.” See Ye v. DHS, 446 F.3d 3 289, 294-95 (2d Cir. 2006) (finding omission material and 4 affirming adverse credibility finding where asylum applicant 5 testified that he was beaten during detention by family 6 planning officials, but had not included such facts in 7 application). 8 Further, the agency was not required to accept Lin’s 9 explanations for his omission. Lin has offered various 10 explanations for the omission: his attorney failed to 11 include it; the controlling law at the time he filed his 12 application rendered the incident “immaterial”; he did not 13 realize that the incident was not in his application because 14 he “did not pay attention” while it was being read back to 15 him; he was nervous in his asylum application interview; and 16 the asylum officer never asked him about it. However, we 17 generally will not disturb adverse credibility 18 determinations that are based on “specific examples in the 19 record of inconsistent statements . . . about matters 20 material to [an applicant’s] claim of persecution, or on 21 contradictory evidence or inherently improbable testimony 22 regarding such matters.” Zhou Yun Zhang v. INS, 386 F.3d 23 566, 74 (2d Cir. 2004) (internal quotation marks omitted), 1 overruled in part on other grounds by Shi Liang Lin , 494 2 F.3d at 305. Further, an IJ need not credit an applicant’s 3 explanations for inconsistent testimony unless those 4 explanations would compel a reasonable fact-finder to do so. 5 See Majidi v. Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005). 6 Because a petitioner is required to offer more than a 7 “plausible explanation,” the IJ was not required to credit 8 Lin’s explanations. See id. at 80. 9 Here, the “adverse credibility finding was based, inter 10 alia , on a specific example of [inconsistent] evidence that 11 undermined the very ‘crux’ of [Lin’s] asylum application.” 12 See Zhou Yi Ni v. U.S. Dep’t of Justice , 424 F.3d 172, 174 13 (2d Cir. 2005). Lin’s omission of a material aspect of his 14 asylum claim “is, standing alone, significant enough to 15 support an adverse credibility finding.” See id. Because 16 the only evidence of a threat to Lin’s life or freedom 17 depended upon his credibility, the adverse credibility 18 determination in this case necessarily precludes success on 19 his claims for asylum, withholding of removal, and CAT 20 relief.See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 21 2006); Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 22 523 (2d Cir. 2005). Because the adverse credibility 23 6determination is dispositive, we need not consider the other 1 arguments Lin raises. 2 For the foregoing reasons, the petition for review is 3 DENIED. As we have completed our review, any stay of 4 removal that the Court previously granted in this petition 5 is VACATED, and any pending motion for a stay of removal in 6 this petition is DISMISSED as moot. Any pending request for 7 oral argument in this petition is DENIED in accordance with 8 Federal Rule of Appellate Procedure 34(a)(2), and Second 9 Circuit Local Rule 34.1(b). 10
FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12 13 14

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