         08-2587-ag
         Lin v. Holder
                                                                                       BIA
                                                                                    Bain, IJ
                                                                                A97 958 005
                               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 1 st day of February, two thousand ten.
 5
 6       PRESENT:
 7                            GUIDO CALABRESI,
 8                            ROSEMARY S. POOLER,
 9                            ROBERT A. KATZMANN,
10                                         Circuit Judges.
11
12       _______________________________________
13
14       JING LIN,
15                           Petitioner,
16
17                            v.                                08-2587-ag
18                                                              NAC
19       ERIC H. HOLDER JR., UNITED STATES
20       ATTORNEY GENERAL, 1
21                Respondent.
22
23       _______________________________________
24
25


                         1
                     Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
             General Eric H. Holder Jr., is automatically substituted for former
             Attorney General Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONER:         Liu Yu, New York, New York.
 2
 3   FOR RESPONDENT:         Gregory G. Katsas, Assistant
 4                           Attorney General; William C.
 5                           Peachey, Assistant Director;
 6                           Yamileth G. Handuber, Trial
 7                           Attorney, Office of Immigration
 8                           Litigation, United States Department
 9                           of Justice, Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

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

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

14   is DENIED.

15       Jing Lin, a native and citizen of the People’s Republic

16   of China, seeks review of a May 6, 2008 order of the BIA,

17   affirming the December 5, 2006 decision of Immigration Judge

18   (“IJ”) Terry Bain, which denied his application for asylum,

19   withholding of removal, and relief under the Convention

20   Against Torture (“CAT”).   In re Jing Lin, No. A97 958 005

21   (B.I.A. May 6, 2008), aff’g No. A97 958 005 (Immig. Ct. N.Y.

22   City Dec. 5, 2006).   We assume the parties’ familiarity with

23   the underlying facts and procedural history in this case.

24       When the BIA does not expressly “adopt” the IJ’s

25   decision, but its brief opinion closely tracks the IJ’s

26   reasoning, we may consider both the IJ’s and the BIA’s

27   opinions for the sake of completeness if doing so does not


                                   2
1    affect our ultimate conclusion.       Jigme Wangchuck v. DHS, 448

2    F.3d 524, 528 (2d Cir. 2006).       We review the agency’s

3    factual findings under the substantial evidence standard.

4    See 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA,

5    510 F.3d 377, 379 (2d Cir. 2007).

6        As an initial matter, we do not presume that Lin is

7    credible because, contrary to his argument, the BIA agreed

8    with the IJ’s adverse credibility findings, explicitly

9    noting the implausibility of his testimony.       Cf. Zaman v.

10   Mukasey,514 F.3d 233, 237-38 (2d Cir. 2008) (concluding that

11   the agency made an adequately “explicit credibility finding”

12   even though the “the BIA’s order does not explicitly tell us

13   whether the IJ made an adverse credibility determination,

14   neither does it indicate that the IJ’s decision was anything

15   else.”).

16       Upon review of the administrative record, we find that

17   substantial evidence supports the agency’s adverse

18   credibility determination, which was based, in part, on the

19   implausibility of Lin’s testimony.       An adverse credibility

20   determination may be based on the inherent implausibility of

21   an applicant’s testimony.   See Jin Hui Gao v. U.S. Att’y

22   Gen., 400 F.3d 963, 964 (2d Cir. 2005).       We review


                                     3
1    implausibility findings in the context of the entire record

2    and “not whether each unusual or implausible feature of the

3    account can be explained or rationalized.”       Ying Li v. BCIS,

4    529 F.3d 79, 82 (2d Cir. 2008).       The point at which an

5    implausibility finding “ceases to be sustainable as

6    reasonable and, instead, is justifiably labeled

7    ‘speculation’ . . . cannot be located with precision.”        Ming

8    Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir. 2006).       However,

9    while “bald” speculation is an impermissible basis for an

10   adverse credibility finding, speculation based on inference

11   is not “bald” if the inference is “tethered to record

12   evidence.”   Wensheng Yan v. Mukasey, 509 F.3d 63, 66-67 (2d

13   Cir. 2007); see also Siewe v. Gonzales, 480 F.3d 160, 168-69

14   (2d Cir. 2007).

15       Before the agency, Lin, who had no involvement with

16   Falun Gong in China, claimed that he feared that police

17   would arrest him immediately upon learning from a neighbor

18   of his friend’s arrest at a Falun Gong gathering.       Lin

19   asserted that he decided to flee China and indeed departed

20   China with the assistance of a snakehead within twenty-four

21   hours of his friend’s arrest.       Lin also claimed that, in the

22   United States, he read a book on Falun Gong written by the


                                     4
1    founder of the practice and practiced Falun Gong for at

2    least two years.   However, upon further questioning, Lin

3    admitted that he did not know about the theory behind Falun

4    Gong or how many movements were in the “one or two” Falun

5    Gong exercises that he purportedly practiced.

6        The agency found Lin’s story inherently implausible.

7    In particular, the agency found it implausible that police

8    would want to arrest Lin, noting that he failed to

9    adequately explain why police associated him with his Falun

10   Gong practitioner friend where he was not himself a Falun

11   Gong practitioner, he knew little about his friend’s

12   practice, and his friend’s corroborating letter did not

13   indicate that Lin had been implicated during the arrest.

14   See Wensheng Yan, 509 F.3d at 66-67.   Moreover, ordinary

15   experience supports the IJ’s finding that Lin’s ability to

16   arrange to be smuggled from China to the United States and

17   to depart China within twenty-four hours of his friend’s

18   arrest was implausible.   Finally, while a credibility

19   finding based on an applicant’s lack of doctrinal knowledge

20   may be erroneous, see Rizal v. Gonzales, 442 F.3d 84, 90 (2d

21   Cir. 2006) (rejecting “the rationale that a certain level of

22   doctrinal knowledge is necessary in order to be eligible for


                                   5
1    asylum” on account of a religious affiliation), the IJ did

2    not err in finding that it implausible that Lin practiced

3    Falun Gong in the United States and still “knows nothing”

4    about Falun Gong, see id. (recognizing that there may be

5    “instances in which the nature of an individual applicant’s

6    account would render his lack of a certain degree of

7    doctrinal knowledge suspect and could therefore provide

8    substantial evidence in support of an adverse credibility

9    finding”).     Because no reasonable fact finder would be

10   compelled to reach a conclusion contrary to that of the

11   agency, we will not disturb its implausibility finding.

12       Lin has failed to challenge the agency’s corroboration

13   finding, other than to argue incorrectly that the agency did

14   not consider the fact that he practices Falun Gong in the

15   United States.     Likewise, Lin does not challenge the IJ’s

16   other adverse credibility findings; accordingly, we deem any

17   such arguments waived.     See Yueqing Zhang v. Gonzales, 426

18   F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

19       Ultimately, the IJ’s adverse credibility determination

20   was supported by substantial evidence.     See Shu Wen Sun, 510

21   F.3d at 379.     Thus, the agency reasonably denied Lin’s




                                     6
1    application for asylum and withholding of removal. 2               See

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

3    (recognizing that withholding of removal and CAT claims

4    necessarily fail if the applicant is unable to show the

5    objective likelihood of persecution needed to make out an

6    asylum claim and the factual predicate for the claims is the

7    same).        Finally, Lin has waived any challenge to the

8    agency’s denial of his application for CAT relief.                See

9    Yueqing Zhang, 426 F.3d at 541 n.1, 545 n.7.

10        For the foregoing reasons, the petition for review is

11   DENIED.        Having completed our review, the pending motion for

12   a stay of removal in this petition is DISMISSED as moot.

13
14                                      FOR THE COURT:
15                                      Catherine O’Hagan Wolfe, Clerk
16

17




               2
                Contrary to the government’s argument, there is no indication
       that Lin waived his challenge to the agency’s denial of his application for
       withholding of removal, where his brief explicitly states that he is
       challenging the agency’s denial of such relief. Furthermore, Lin’s
       challenge to the agency’s finding that he failed to demonstrate a well-
       founded fear of persecution includes a challenge to the agency’s denial of
       his application for withholding of removal, where the agency denied such
       relief for his failure to satisfy the higher burden of proof for
       establishing eligibility for asylum, i.e., a well-founded fear of
       persecution.
                                          7
