    10-1617
    Lin v. Holder
                                                                                  BIA
                                                                             Videla, IJ
                                                                          A094 798 132
                     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
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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 Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 12th day of September, two thousand thirteen.

    PRESENT:
             ROSEMARY S. POOLER,
             PETER W. HALL,
             GERARD E. LYNCH,
                  Circuit Judges.
    _______________________________________

    YOU KUN LIN, AKA LIN YOU KUN,
             Petitioner,

                    v.                                     10-1617
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL, UNITED STATES
    DEPARTMENT OF HOMELAND SECURITY, BOARD
    OF IMMIGRATION APPEALS,
             Respondents.
    ______________________________________

    FOR PETITIONER:               You Kun Lin, pro se, New York, NY.

    FOR RESPONDENTS:              Tony West, Assistant Attorney
                                  General; Shelley R. Goad, Assistant
                                  Director; Katharine E. Clark, Trial
                             Attorney, 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.

 1       Petitioner You Kun Lin, a native and citizen of the

 2   People’s Republic of China, seeks review of a March 29,

 3   2010, decision of the BIA affirming the August 5, 2008,

 4   decision of Immigration Judge (“IJ”) Gabriel C. Videla,

 5   denying his application for asylum, withholding of removal,

 6   and relief under the Convention Against Torture (“CAT”).          In

 7   re You Kun Lin, No. A094 798 132 (B.I.A. Mar. 29, 2010),

 8   aff’g No. A094 798 132 (Immig. Ct. N.Y. City Aug. 5, 2008).

 9   We assume the parties’ familiarity with the underlying facts

10   and procedural history in this case.

11       Under the circumstances of this case, we have reviewed

12   both the BIA’s and IJ’s opinions.       See Zaman v. Mukasey, 514

13   F.3d 233, 237 (2d Cir. 2008).       The applicable standards of

14   review are well-established.    See 8 U.S.C. § 1252(b)(4)(B);

15   see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d

16   Cir. 2008).   For asylum applications governed by the REAL ID


                                     2
 1   Act, such as the application in this case, the agency may,

 2   considering the totality of the circumstances, base a

 3   credibility finding on an asylum applicant’s demeanor, the

 4   plausibility of his account, and inconsistencies in his

 5   statements and other record evidence, without regard to

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

 7   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-

 8   64.

 9         Substantial evidence supports the IJ’s adverse

10   credibility determination.   In finding Lin not credible, the

11   IJ reasonably relied in part on the omission from both his

12   asylum application and his uncle’s letter that family

13   planning officials beat him on account of his resistance to

14   China’s family planning policy.   Although, in summarizing

15   the IJ’s findings, the BIA appears to have misinterpreted

16   the IJ’s decision as indicating that Lin answered in the

17   “negative [a] . . . question in his asylum application (Form

18   I-589), as to whether he had ever been beaten or physically

19   mistreated by anyone in China,” it would be futile to remand

20   for the BIA to correct this erroneous interpretation of the

21   IJ’s omission finding.   The IJ’s underlying finding did not

22   contain the same error, and we can confidently predict that

23   the BIA, after correcting its misstatement, would again

                                   3
 1   conclude that the IJ’s adverse credibility determination,

 2   including his omission finding, was not clearly erroneous.

 3   See Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir. 2008).

 4       Furthermore, a reasonable fact finder would not be

 5   compelled to credit Lin’s explanations for the omissions

 6   from his asylum application and his uncle’s letter.    See

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

 8   IJ also did not err in noting that Lin had “incentive to

 9   embellish his claim” to include the omitted physical

10   altercation with family planning officials because, after he

11   filed his asylum application, but before his merits hearing,

12   we issued our decision in Shi Liang Lin v. U.S. Dep’t of

13   Justice, 494 F.3d 296 (2d Cir. 2007), under which Lin was no

14   longer per se eligible for relief solely based on his wife’s

15   forced abortion.

16       Having questioned Lin’s credibility, the IJ reasonably

17   relied further on Lin’s failure to provide evidence

18   corroborating his claim that he suffered economic harm

19   rising to the level of persecution when family planning

20   officials purportedly closed his store.   See Biao Yang v.

21   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).   In addition,

22   contrary to Lin’s contention, the IJ was not required to

23   first identify the particular pieces of missing, relevant

                                  4
 1   evidence, and show that this evidence was reasonably

 2   available before relying on a lack of corroboration to

 3   support the adverse credibility finding.    See Maladho Djehe

 4   Diallo v. Gonzales, 445 F.3d 624, 633-34 (2d Cir. 2006).

 5   Nevertheless, in this case, the IJ identified the missing

 6   corroborating evidence and explained why it was reasonably

 7   available.   Accordingly, because substantial evidence

 8   supports the IJ’s determination that Lin was not credible as

 9   to his claims of past persecution, the agency did not err in

10   denying him asylum or withholding of removal to that extent.

11       Lin does not challenge in his brief the agency’s

12   determination that he failed to demonstrate his eligibility

13   for relief based on a well-founded fear of future

14   persecution or a likelihood of torture.    However, even

15   liberally construing Lin’s pro se brief as raising such a

16   challenge, see Triestman v. Fed. Bureau of Prisons, 470 F.3d

17   471, 474 (2d Cir. 2006), we conclude that the agency did not

18   err in deeming speculative Lin’s claimed fear of forced

19   sterilization based on his desire to have more than one

20   child in the future.   See Jian Xing Huang v. INS, 421 F.3d

21   125, 129 (2d Cir. 2005) (holding that “[i]n the absence of

22   solid support in the record for [an applicant’s] assertion

23   that he will be [persecuted], his fear is speculative at

                                   5
1    best”); see also Jian Hui Shao v. Mukasey, 546 F.3d 138,

2    159-62 (2d Cir. 2008) (finding no error in the BIA’s

3    conclusion that evidence of country conditions did not

4    demonstrate that a petitioner from Fujian Province with two

5    children born in China had an objectively reasonably fear of

6    forced sterilization).

7        For the foregoing reasons, the petition for review is

8    DENIED.

 9                              FOR THE COURT:
10                              Catherine O’Hagan Wolfe, Clerk
11




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