     17-875
     Lin v. Barr
                                                                                  BIA
                                                                              Lamb, IJ
                                                                          A205 611 039
                        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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 8th day of April, two thousand nineteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            JOSÉ A. CABRANES,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   DONG LIN,
14                 Petitioner,
15
16                 v.                                            17-875
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Michael E. Piston, Piston &
24                                    Carpenter, P.C., New York, NY.
25
26   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
27                                    Attorney General; Anthony P.
28                                    Nicastro, Assistant Director;
29                                    Tracey N. McDonald, Trial
30                                    Attorney, Office of Immigration
31                                    Litigation, United States
32                                    Department of Justice, Washington,
33                                    DC.
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        Petitioner Dong Lin, a native and citizen of the People’s

6    Republic of China, seeks review of a February 28, 2017,

7    decision of the BIA affirming a June 8, 2016, decision of an

8    Immigration   Judge   (“IJ”)    denying   Lin’s   application    for

9    asylum,   withholding   of     removal,   and   relief   under   the

10   Convention Against Torture (“CAT”).        In re Dong Lin, No. A

11   205 611 039 (B.I.A. Feb. 28, 2017), aff’g No. A 205 611 039

12   (Immig. Ct. N.Y. City June 8, 2016).       We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we have reviewed

16   both the BIA’s and IJ’s decisions.          See Yun-Zui Guan v.

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

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

19   § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76

20   (2d Cir. 2018) (reviewing adverse credibility determination

21   under a substantial evidence standard); Gjerjaj v. Holder,
                                       2
1    691 F.3d 288, 292 (2d Cir. 2012) (reviewing constitutional

2    claims de novo).

3        The agency denied Lin’s application, finding that he was

4    not credible given misrepresentations that undermined his

5    alleged practice of Christianity.    The governing REAL ID Act

6    credibility standard provides as follows:

 7       Considering the totality of the circumstances, and
 8       all relevant factors, a trier of fact may base a
 9       credibility determination on the demeanor, candor,
10       or responsiveness of the applicant or witness, . .
11       . the consistency between the applicant’s or
12       witness’s written and oral statements . . . , the
13       internal consistency of each such statement, the
14       consistency of such statements with other evidence
15       of record . . . , and any inaccuracies or falsehoods
16       in such statements, . . . or any other relevant
17       factor.
18
19   8 U.S.C. § 1158(b)(1)(B)(iii).     “We defer . . . to an IJ’s

20   credibility determination unless . . . it is plain that no

21   reasonable fact-finder could make such an adverse credibility

22   ruling.”    Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

23   2008).     Substantial evidence supports the agency’s adverse

24   credibility determination.

25       Lin’s inconsistent testimony regarding whether he lived

26   in New York or Florida provides substantial evidence for the

27   adverse credibility determination because it called into
                                    3
1    question the main premise of his asylum claim, that he was a

2    practicing Christian.      See 8 U.S.C. § 1158(b)(1)(B)(iii);

3    Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).             The

4    agency was not required to credit Lin’s explanation that he

5    lived in New York but worked in Florida, particularly because

6    Lin’s own testimony was that he only returned to New York

7    every two to three months while working in Florida.               See

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

9    petitioner must do more than offer a plausible explanation

10   for his inconsistent statements to secure relief; he must

11   demonstrate that a reasonable fact-finder would be compelled

12   to   credit   his   testimony.”       (quotation   marks   omitted)).

13        Lin’s testimony that he worked in Florida and came to

14   New York every two or three months was inconsistent with his

15   testimony that he attended church in New York twice a month.

16   Lin argues that the BIA engaged in improper fact finding by

17   noting this inconsistency in the first instance and that he

18   was never given an opportunity to explain this inconsistency.

19   Although the IJ did not explicitly state that Lin’s testimony

20   that he attended church twice a month was inconsistent with

21   his testimony that he only returned to New York every two to
                                       4
1    three months, the IJ concluded that Lin’s testimony that he

2    worked in Florida undermined his claim that he was attending

3    church in New York.         The BIA did not engage in improper fact

4    finding in evaluating the record to determine whether there

5    was   any    error     in   the    IJ’s   finding.        See    8     C.F.R.

6    § 1003.1(d)(3) (providing that BIA reviews IJ’s findings of

7    fact only for clear error).

8          Furthermore,     because     the    inconsistency    was       “plainly

9    obvious,” the agency was not required to call it to Lin’s

10   attention and solicit an explanation.             Cf. Ming Shi Xue v.

11   BIA, 439 F.3d 111, 121 (2d Cir. 2006) (“[W]here the perceived

12   incongruities in an asylum applicant’s testimony are not

13   plainly obvious, an IJ cannot rely on them to support an

14   adverse credibility ruling without first identifying the

15   alleged inconsistencies for the applicant and giving the

16   applicant an opportunity to address them.”).                Although Lin

17   provided flight details for trips between Florida and New

18   York, the evidence does not show he was active in the church

19   because     he   was   in    New   York    for   only   short        periods.

20         Additionally, the record does not reflect that the agency

21   failed to consider evidence that Lin became a public opponent
                                          5
1    of the Chinese government in May 2012 and participated in a

2    public protest again in April 2013.           The IJ acknowledged that

3    Lin’s name and photograph appeared in the media; however,

4    given the lack of credibility regarding his motivation for

5    those protests, there was no basis for finding a credible

6    claim that he would continue those activities in China.                  See

7    Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008)

8    (“[T]he agency is not required to “expressly parse or refute

9    on the record each individual argument or piece of evidence

10   offered.”).    Furthermore, the BIA did not err in declining

11   to take administrative notice of the 2015 Department of State

12   Religious Freedom Report.          Because Lin’s claim that he was

13   actively    participating     in    a   Christian      church    was     not

14   credible,    the   report’s   discussion       of    the   treatment      of

15   Christians was not relevant to the agency’s decision.

16         Lin’s inconsistent testimony regarding where he lived

17   and   the   frequency   of    his    church    attendance       completely

18   undermines his credibility and provides substantial evidence

19   for the adverse credibility determination.             See Xian Tuan Ye

20   v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006)

21   (holding    that   material   inconsistency         regarding    basis    of
                                         6
1    asylum claim constitutes substantial evidence).           Because

2    Lin’s claims were all based on the same factual predicate,

3    the   adverse   credibility   determination   is   dispositive   of

4    asylum, withholding of removal, and CAT relief.       See Paul v.

5    Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

6          For the foregoing reasons, the petition for review is

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

8    that the Court previously granted in this petition is VACATED,

9    and any pending motion for a stay of removal in this petition

10   is DISMISSED as moot.    Any pending request for oral argument

11   in this petition is DENIED in accordance with Federal Rule of

12   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

13   34.1(b).

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




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