    16-2347
    Jin v. Sessions
                                                                                       BIA
                                                                                   Lamb, IJ
                                                                               A087 446 554
                           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
    24th day of January, two thousand eighteen.

    PRESENT:
             DENNIS JACOBS,
             PETER W. HALL,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    YUJI JIN,
                      Petitioner,

                      v.                                             16-2347
                                                                     NAC
    JEFFERSON B. SESSIONS III,
    UNITED STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Evan Goldberg, Law Office of
                                         Theodore M. Davis, New York, NY.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Stephen
                                         J. Flynn, Assistant Director;
                                         Annette M. Wietecha; Evan P.
                                         Schultz, Trial Attorneys, Office of
                                         Immigration Litigation, United
                                         States Department of Justice,
                                         Washington, DC.
    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 Yuji Jin, a native and citizen of the People’s

Republic of China, seeks review of a June 16, 2016, decision

of the BIA affirming a February 4, 2015, decision of an

Immigration Judge (“IJ”) denying Jin’s application for asylum,

withholding of removal, and relief under the Convention Against

Torture (“CAT”).   In re Yuji Jin, No. A087 446 554 (B.I.A. June

16, 2016), aff’g No. A087 446 554 (Immig. Ct. N.Y. City Feb.

4, 2015).    We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    In lieu of filing a brief, the Government moves for summary

denial of Jin’s petition for review.        Summary denial is

warranted only if a petition is frivolous, Pillay v. INS, 45

F.3d 14, 17 (2d Cir. 1995).   As Jin has filed a merits brief,

we treat the Government’s motion as a response to that brief,

and deny the petition.

    Under the circumstances of this case, we have reviewed the

IJ’s decision as modified by the BIA.    Xue Hong Yang v. U.S.

Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yun-Zui Guan

v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).   The applicable
                               2
standards of review are well established.     8 U.S.C.

§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

(2d Cir. 2008).   “Considering the totality of the

circumstances,” the agency may base an adverse credibility

determination on discrepancies between an applicant’s oral and

written statements and between an applicant’s statements and

other record evidence, as well as “any other relevant factor.”

8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-65.

“We defer . . . to an IJ’s credibility determination unless

. . . 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 agency’s adverse credibility

ruling.

    Jin testified that in 2013 Chinese police went to her home

in China and told her husband that she would be arrested upon

return to China if she did not cease her pro-democracy

activities.   Jin’s amended asylum application, however,

submitted less than a month before her hearing, omitted this

incident.   This omission alone is substantial evidence

supporting the adverse credibility determination.        Xiu Xia

Lin, 534 F.3d at 166 n.3 (“An inconsistency and an omission

are . . . functionally equivalent.”); Xian Tuan Ye v. Dep’t of

Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (“[A] material
                               3
inconsistency in an aspect of [an applicant’s] story that served

as an example of the very persecution from which he sought

asylum . . . afforded substantial evidence to support the

adverse credibility finding.” (internal quotation marks

omitted)).    This visit was central to proving Jin’s alleged

fear of persecution on account of her Chinese Freedom and

Democracy Party (“CFDP”) activities, and its omission calls

into question whether the Chinese government was aware of her

activities.    Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d

Cir. 2008) (“[T]o establish a well-founded fear of persecution

in the absence of any evidence of past persecution, an alien

must make some showing that authorities in his country of

nationality are either aware of his activities or likely to

become aware of his activities.”).      Given the centrality of

this omission and Jin’s last-minute attempt to supplement her

application at her hearing, the agency reasonably concluded

that she was not credible.    Xian Tuan Ye, 446 F.3d at 295; Siewe

v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).      Moreover, the

agency was not required to accept Jin’s explanation that she

forgot to include this incident because she had known about it

since 2013 and it was the primary reason she feared persecution

in China.    See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)

(“A petitioner must do more than offer a plausible explanation
                                 4
for his inconsistent statements to secure relief; he must

demonstrate that a reasonable fact-finder would be compelled

to credit his testimony.”       (internal quotation marks

omitted)).

    Additionally, that there was no letter from Jin’s husband

corroborating     this   incident     further   undermined    Jin’s

credibility.    Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.

2007) (“An applicant’s failure to corroborate [her] . . .

testimony may bear on credibility, because the absence of

corroboration    in   general   makes   an   applicant   unable   to

rehabilitate testimony that has already been called into

question.”).     Although Jin testified that her husband was

afraid to send a letter, the agency was not compelled to accept

the explanation, especially given Jin’s submissions of letters

from her father and cousin in China regarding past encounters

with Chinese officials.      Majidi, 430 F.3d at 80-81.

    Because this omission and lack of corroborating evidence

constitute     substantial   evidence   supproting   the     adverse

credibility determination, see Xian Tuan Ye, 446 F.3d at 295;

Biao Yang, 496 F.3d at 273, and because Jin’s claims for asylum,

withholding, and CAT relief were all based on the same factual

predicate,     the    adverse    credibility    determination     is


                                  5
dispositive of all three.   Paul v. Gonzales, 444 F.3d 148,

156-57 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the Government’s

motion for summary denial is DENIED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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