09-0302-ag
Lin v. Holder
                                                                                 BIA
                                                                            Sichel, IJ
                                                                        A079 087 431
                     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
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 23 rd day of Februry, two thousand ten.

PRESENT:
         REENA RAGGI,
         PETER W. HALL,
         DEBRA ANN LIVINGSTON,
                Circuit Judges.
_____________________________________

LI XIONG LIN,
         Petitioner,

                    v.                                  09-0302-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, *
         Respondent.
______________________________________

FOR PETITIONER:                Fuhao Yang, New York, New York.




                *
          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.
FOR RESPONDENT:           Tony West, Assistant Attorney
                          General; Blair T. O’Connor,
                          Assistant Director; Remi Adalemo,
                          Attorney, Office of Immigration
                          Litigation, United States Department
                          of Justice, Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    Li Xiong Lin, a native and citizen of the People’s

Republic of China, seeks review of a December 24, 2008 order

of the BIA, affirming the April 19, 2007 decision of

Immigration Judge (“IJ”) Helen Sichel, which denied his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).     In re Li

Xiong Lin, No. A079 087 431 (B.I.A. Dec. 24, 2008), aff’g

No. A079 087 431 (Immig. Ct. N.Y. City Apr. 19, 2007).        In

light of the facts 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).     We will uphold

the agency’s factual findings, including adverse credibility

determinations, so long as they are supported by substantial

evidence.   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

Holder, 562 F.3d 510, 513 (2d Cir. 2009); Corovic v.

Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).     However, “[w]e

                                2
review de novo questions of law and the application of law

to undisputed fact.”   Salimatou Bah v. Mukasey, 529 F.3d 99,

110 (2d Cir. 2008). In applying these standards, we assume

the parties’ familiarity with the underlying facts and the

record of prior proceedings.

    Given the cumulative effect of various inconsistencies

in Lin’s testimony, the agency’s adverse credibility

determination is supported by substantial evidence.    See Tu

Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006); Liang

Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-107 (2d Cir.

2006).   In particular, Lin’s testimony was inconsistent as

to whether his brother – the owner of the bookstore where

Lin allegedly sold Falun Gong books – fled after Lin’s first

or second alleged incident with Chinese officials, whether

Lin failed to put his passport into evidence because it had

expired or because he had misplaced it, and whether Lin used

his own passport or someone else’s to fly from Los Angeles

to New York.

    Although Lin argues that the agency erred in relying on

these inconsistencies given their relative insignificance,

the agency was entitled to weigh the cumulative effect of

the inconsistencies when measured against the record as a


                               3
whole.   See Liang Chen, 454 F.3d at 106-07.    The agency was

also entitled to discount Lin’s explanations that he

testified inconsistently because he was nervous.     See Majidi

v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

    Having found Lin’s testimony not credible, the agency

considered whether his claims were corroborated by other

evidence.   While the agency acknowledged the existence of an

unauthenticated Notice of the Town Committee and an

affidavit from Lin’s father, both of which purported to

support Lin’s claim, it declined to accord substantial

weight to this evidence because documentation from China is

subject to widespread fraud and Lin’s father had significant

familial reasons to corroborate Lin’s claims.     On this

record, we cannot conclude that the agency acted outside its

discretion in deeming the lack of corroborating evidence

further support for its adverse credibility finding.        See

Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007); see

also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,

342 (2d Cir. 2006) (recognizing that weight afforded to

applicant’s evidence in immigration proceedings lies largely

within discretion of IJ).




                              4
    As Lin’s claims for asylum and withholding of removal

share the same factual predicate, the agency’s adverse

credibility determination constitutes a sufficient basis for

its denial of both claims.     See Paul v. Gonzales, 444 F.3d

148, 156 (2d Cir. 2006).     Accordingly, we need not consider

the IJ’s or the agency’s alternative bases for denying these

claims.

    Finally, because Lin provided no credible evidence that

he was tortured in the past or that anyone in the Chinese

government would seek to torture him upon his return to

China, we identify no error in the agency’s denial of his

request for CAT relief.     See Pierre v. Gonzales, 502 F.3d

109, 114 (2d Cir. 2007); Hongsheng Leng v. Mukasey, 528 F.3d

135, 143 (2d Cir. 2008).

    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 DISMISSED 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(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




                                5
