         10-3134-ag
         Lin v. Holder
                                                                                       BIA
                                                                                 Morace, IJ
                                                                               A089 252 827
                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 17th day of August, two thousand eleven.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                RICHARD C. WESLEY,
 9                PETER W. HALL,
10                     Circuit Judges.
11       _______________________________________
12
13       Jin Chun Lin,
14                Petitioner,
15
16                       v.                                     10-3134-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Farah Loftus, Century City, CA.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Linda S. Wernery, Assistant
27                                     Director; Janice K. Redfern, Senior
28                                     Litigation Counsel, Office of
29                                     Immigration Litigation, Civil
30                                     Division, United States Department
31                                     of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is DENIED.

 5       Petitioner Jin Chun Lin, a native and citizen of China,

 6   seeks review of a July 19, 2010, order of the BIA affirming

 7   the October 14, 2008, decision of Immigration Judge (“IJ”)

 8   Philip L. Morace denying Lin’s application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).   In re Jin Chun Lin, No. A089 252

11   827 (B.I.A. July 19, 2010), aff’g No. A089 252 827 (Immig.

12   Ct. N.Y. City Oct. 14, 2008).       We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as supplemented by the BIA’s decision.

17   See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

18   The applicable standards of review are well-established.

19   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

20   F.3d 510, 513 (2d Cir. 2009).

21       For asylum applications, such as this one, governed by

22   the REAL ID Act, the agency may, considering the totality of

23   the circumstances, base a credibility finding on an asylum

24   applicant’s “demeanor, candor, or responsiveness,” and

                                     2
 1   inconsistencies in his or her statements, without regard to

 2   whether they go “to the heart of the applicant’s claim.”

 3   8 U.S.C. § 1158(b)(1)(B)(iii).      Here, the agency found that

 4   Lin was not credible based on inconsistencies between his

 5   testimony and his asylum application, long pauses in his

 6   testimony, and unresponsive answers.      The record supports

 7   these findings.   See Majidi v. Gonzales, 430 F.3d 77, 81 n.1

 8   (2d Cir. 2005) (noting this Court’s deference’s to an IJ’s

 9   findings regarding an asylum applicant’s demeanor because

10   the IJ has “the unique advantage . . . of having heard

11   directly from the applicant” (internal citations and

12   quotations omitted)).    While Lin contends that these pauses

13   and non-responsive answers were a result of a confusing line

14   of questioning by the government attorney, the record

15   indicates that the pauses and non-responsive answers

16   continued throughout his testimony, not only as a response

17   to the confusing questioning.

18       Having found Lin not credible, the agency reasonably

19   expected him to rehabilitate his testimony by providing

20   corroboration of his wife’s alleged abortion or medical

21   records supporting his claim that he was beaten by family

22   planning officials.     See Biao Yang v. Gonzales, 496 F.3d


                                     3
 1   268, 273 (2d Cir. 2007) (finding that once an asylum

 2   applicant’s testimony has been called into question, an IJ

 3   can expect corroboration).   Lin asserts in his brief that

 4   documentation of his wife’s abortion was not available

 5   because the abortion was involuntary, but counsel’s

 6   unsupported assertions in a brief do not constitute

 7   evidence, see INS v. Phinpathya, 464 U.S. 183, 188 n.6

 8   (1984), and Lin did not present this argument to either the

 9   IJ or the BIA on appeal.

10       Together, the problems the agency identified in Lin’s

11   testimony and his failure to provide sufficient

12   corroboration provide substantial evidence for its adverse

13   credibility determination.   See 8 U.S.C.

14   § 1158(b)(1)(B)(iii).   Because Lin’s claims for asylum,

15   withholding of removal, and CAT relief were all based on the

16   same factual predicate, the agency’s adverse credibility

17   determination forecloses all relief. See Paul v. Gonzales,

18   444 F.3d 148, 156 (2d Cir. 2006).

19       For the foregoing reasons, the petition for review is

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

21   removal that the Court previously granted in this petition

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


                                   4
1   this petition is DISMISSED as moot.    Any pending request for

2   oral argument in this petition is DENIED in accordance with

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

4   Circuit Local Rule 34.1(b).

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




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