         11-1681-ag
         Jin v. Holder
                                                                                        BIA
                                                                                 Laforest, IJ
                                                                               A093 451 553
                          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 12th day of January, two thousand twelve.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                ROBERT A. KATZMANN,
 9                RICHARD C. WESLEY,
10                    Circuit Judges.
11       _______________________________________
12
13       XIULUO JIN,
14                Petitioner,
15
16                       v.                                     11-1681-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Emanuel Liu, Flushing, NY.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Keith I. McManus, Senior
27                                     Litigation Counsel; Lindsay M.
28                                     Murphy, Trial Attorney; Sheila
29                                     Gholkar, Law Clerk, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     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       Xiuluo Jin, a native of North Korea and citizen of the

 6   People’s Republic of China, seeks review of an April 6,

 7   2011, decision of the BIA affirming the December 17, 2008

 8   decision of Immigration Judge (“IJ”) Brigitte Laforest,

 9   which denied her application for asylum, withholding of

10   removal, and relief under the Convention Against Torture

11   (“CAT”).     In re Xiuluo Jin, No. A093 451 553 (B.I.A. April

12   6, 2011), aff’g No. A093 451 553 (Immig. Ct. N.Y. City Dec.

13   17, 2008).    We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   both the BIA's and the IJ's opinions - or more precisely, we

17   have reviewed the IJ's decision including the portions not

18   explicitly discussed by the BIA.     See Yun-Zui Guan v.

19   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).     The applicable

20   standards of review are well-established.     See 8 U.S.C.

21   § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

22   510, 513 (2d Cir. 2009).

23

                                     2
 1       For asylum applications such as Jin’s, governed by the

 2   amendments made to the Immigration and Nationality Act by

 3   the REAL ID Act of 2005, the agency may, considering the

 4   totality of the circumstances, base a credibility finding on

 5   an asylum applicant’s “demeanor, candor, or responsiveness,”

 6   the plausibility of his or her account, and inconsistencies

 7   in her or her statements, without regard to whether they go

 8   “to the heart of the applicant’s claim.”    See 8 U.S.C.

 9   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

10   167 (2d Cir. 2008).   We will “defer... to an IJ’s

11   credibility determination unless, from the totality of the

12   circumstances, it is plain that no reasonable fact-finder

13   could make” such a ruling.    Xiu Xia Lin, 534 F.3d at 167.

14       In this case, the agency reasonably based its adverse

15   credibility determination on internal inconsistencies in

16   Jin’s testimony, inconsistencies between Jin’s asylum

17   application and her testimony, inconsistencies between Jin’s

18   testimony and the documentary evidence, and the lack of

19   sufficient corroborating evidence.

20       For example, Jin testified that she had never been

21   arrested, before later stating that she had been arrested

22   and detained for three days in China for her participation

23   in an underground church.    Jin then testified inconsistently

                                    3
 1   as to the date of that arrest, and her asylum application

 2   omitted any mention of the arrest for her religious

 3   activities, which formed the basis for her professed fear of

 4   future persecution.   These inconsistencies were proper

 5   grounds for the IJ’s adverse credibility finding.     See

 6   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166.

 7       There were also discrepancies as to Jin’s claim that

 8   she was forced to have two abortions in 1990.   Jin submitted

 9   an abortion certificate dated December 16, 1990, stating

10   that she had requested and received an abortion in May 1990,

11   and that she induced another abortion in December 1990 due

12   to her becoming pregnant while using birth control.    Jin

13   initially stated that she received the certificate

14   immediately after the May 1990 abortion, before changing her

15   testimony to state that she received it in December. While

16   the IJ initially seemed to indicate that Jin’s testimony was

17   consistent with the certificate as to the date, the IJ

18   ultimately concluded that Jin had testified inconsistently

19   on this point.

20       While the IJ’s seeming initial acceptance of this

21   testimony may not have alerted Jin to the need to clarify or

22   corroborate the date she received the certificate, the IJ


                                   4
 1   did alert Jin to credibility concerns relating to the

 2   certificate’s indication that one of Jin’s abortions had

 3   been voluntary.     Therefore, the need to clarify and

 4   corroborate her family planning claim was obvious.       See Ming

 5   Shi Xue v. Bd. of Immigration Appeals, 439 F.3d 111, 126 (2d

 6   Cir. 2006).     Additionally, the agency need not give notice

 7   and an opportunity to explain a dramatic inconsistency

 8   where, as here, the discrepancy went to the very heart of

 9   Jin's claim for asylum.     Id. at 125.

10       The BIA, in turn, affirmed the IJ’s adverse credibility

11   determination, explicitly addressing Jin’s inconsistencies

12   and omission.     Additionally, the BIA reasonably relied on

13   Jin’s lack of sufficient corroborating evidence to find that

14   Jin had failed to rehabilitate her credibility.     See Biao

15   Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).      Given

16   the totality of the circumstances, including Jin’s

17   inconsistencies, omissions, and lack of sufficient

18   corroborating evidence, substantial evidence supports the

19   agency’s adverse credibility determination.     See 8 U.S.C.

20   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.      As the

21   only basis for Jin’s claim depended on her credibility, the

22   adverse credibility determination is also dispositive of her

23   request for withholding of removal and CAT relief.       See Paul
                                     5
 1   v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang

 2   v. U.S. Dep't of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

 3       For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted in this petition

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

 7   this petition is DISMISSED as moot. Any pending request for

 8   oral argument in this petition is DENIED in accordance with

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

10   Circuit Local Rule 34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk
13
14




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