The opinion
13-3881
Lin v. Lynch
BIA
Poczter, IJ
A201 020 782
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
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
18th day of February, two thousand sixteen.
PRESENT:
ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
DENNY CHIN,
Circuit Judges.
_____________________________________
SHI CHUN LIN,
Petitioner,
v.
13-3881
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,*
Respondent.
_____________________________________
* 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 PETITIONER: Michael Brown, Law Office of
Michael A.O. Brown, New York,
New York.
FOR RESPONDENT: Stuart F. Delery, Assistant
Attorney General; Russell
J.E. Verby, Senior Litigation
Counsel; Tim Ramnitz,
Attorney; Office of
Immigration Litigation, U.S.
Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Shi Chun Lin, a native and citizen of China,
seeks review of a September 26, 2013, decision of the BIA
affirming a July 31, 2012, decision of an Immigration Judge
(“IJ”) denying Lin’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Shi Chun Lin, No. A201 020 782 (B.I.A. Sept.
26, 2013), aff’g No. A201 020 782 (Immig. Ct. N.Y. City July
31, 2012). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we review the IJ’s
decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep’t
of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable
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standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
(2d Cir. 2008) (per curiam).
For asylum applications, like Lin’s, governed by the REAL
ID Act, the agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on an asylum
applicant’s “demeanor, candor, or responsiveness,” the
plausibility of his account, and inconsistencies in his
statements, “without regard to whether” they go “to the heart
of the applicant’s claim,” so long as they reasonably support
an inference that the applicant is not credible. 8 U.S.C.
§ 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 167. “We
defer therefore to an IJ’s credibility determination unless,
from the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin, 534 F.3d at 167. Substantial evidence
supports the IJ’s finding that Lin was not credible.
The IJ’s credibility determination was properly based on
Lin’s inconsistent testimony. Lin testified inconsistently
with respect to when his biological child was born, when his
wife was taken for forcible sterilization, who introduced him
to Christianity, which Christian holiday he celebrated most
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recently, and how often he attends church. The IJ considered
and reasonably rejected Lin’s explanations for these
inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80-81
(2d Cir. 2005) (holding that agency need not credit applicant’s
explanations for inconsistent testimony unless those
explanations would compel reasonable fact-finder to do so).
Lin explained his inconsistencies with nonresponsive answers,
by stating that he misspoke, and by apologizing; the IJ
reasonably rejected these purported explanations. Id.
The IJ’s credibility determination was further supported
by Lin’s demeanor. “[D]emeanor is paradigmatically the sort
of evidence that a fact-finder is best positioned to evaluate.”
Li Zu Guan v. INS, 453 F.3d 129, 140 (2d Cir. 2006).
Accordingly, we give “particular deference to credibility
determinations that are based on the adjudicator’s observation
of the applicant’s demeanor.” Jin Chen v. U.S. Dep’t of
Justice, 426 F.3d 104, 113 (2d Cir. 2005). The record supports
the IJ’s findings that Lin was nonresponsive to some questions
and that there were long pauses in his testimony. Because the
IJ was best positioned to assess Lin’s manner while testifying,
we defer to the agency on this point. See Zhou Yun Zhang v.
INS, 386 F.3d 66, 73-74 (2d Cir. 2004), overruled on other
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grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296
(2d Cir. 2007).
The IJ’s credibility determination was also properly based
on Lin’s failure to provide corroboration. Biao Yang v.
Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per curiam). Having
called into question the credibility of Lin’s testimony
regarding his practice of Christianity in the United States,
the IJ reasonably relied on Lin’s failure to offer the testimony
of his pastor or written statements or testimony from fellow
church members. Lin contends that the demand for such evidence
was unreasonable because, as he explained at the hearing,
although his pastor was unwilling to appear, Lin had provided
a letter with the telephone number at which the pastor could
be contacted. Thus, the BIA’s statement that Lin “did not
proffer . . . any written statements from the pastor” is
incorrect. Nevertheless, remand for further proceedings would
be futile because the agency would likely reach the same
decision absent this statement in light of the numerous
inconsistencies and negative demeanor finding. See Xiao Ji
Chen v. U.S Dep’t of Justice, 471 F.3d 315, 339 (2d Cir. 2006)
(explaining that “[t]he overarching test for deeming a remand
futile” is whether “the reviewing court can ‘confidently
5
predict’ that the agency would reach the same decision absent
the errors that were made” (citation omitted)). Moreover, the
pastor’s letter does not resolve the inconsistencies regarding
Lin’s church attendance or the Christian holiday he celebrated
most recently, as it merely states Lin’s baptism date and that
he attends church.
Given the inconsistent testimony, problematic demeanor,
and lack of corroborating evidence, the “totality of the
circumstances” supports the agency’s adverse credibility
determination. See Xiu Xia Lin, 534 F.3d at 167. Lin’s
argument, that the inconsistencies are too insignificant to
form the basis of an adverse credibility determination, is
misplaced. First, the REAL ID Act allows the agency to base
a credibility determination on “any inconsistency.” Id.
(emphasis in original). Nevertheless, the inconsistencies at
issue here go to the heart of Lin’s claim, calling into question
whether Lin ever violated the family planning policy, was or
currently is a Christian, and, in turn, suffered the persecution
he alleged. As all of Lin’s claims share the same factual
predicate, the adverse credibility determination is
dispositive of asylum, withholding of removal, and CAT relief.
Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DENIED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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