         11-869-ag
         Lin v. Holder
                                                                                          BIA
                                                                                     Sichel, IJ
                                                                                 A098 418 781
                              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 New
 4       York, on the 12th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSEPH M. McLAUGHLIN,
 9                REENA RAGGI,
10                    Circuit Judges.
11       _________________________________________
12
13       HUI RONG LIN,
14                Petitioner,
15
16                       v.                                       11-869-ag
17                                                                NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:               Cora Chang, New York, N.Y.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney General;
26                                     Leslie McKay, Assistant Director; Kelly
27                                     J. Walls, Trial Attorney; Stefanie
28                                     Notarino Hennes, Trial Attorney, Office
29                                     of Immigration Litigation, United
30                                     States Department of Justice,
31                                     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       Petitioner Hui Rong Lin, a native and citizen of the

 6   People’s Republic of China, seeks review of a February 11,

 7   2011, decision of the BIA affirming the August 25, 2009,

 8   decision of Immigration Judge (“IJ”) Helen Sichel denying her

 9   application for withholding of removal.       In re Hui Rong Lin,

10   No. A098 419 781 (B.I.A. Feb. 11, 2011), aff’g No. A098 419

11   781 (Immig. Ct. N.Y. City Aug. 25, 2009).      We assume the

12   parties’ familiarity with the underlying facts and procedural

13   history of the case.

14       Under the circumstances of this case, we have reviewed

15   both the BIA’s and the IJ’s opinions. See Yun-Zui Guan v.

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

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

18   § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510,

19   513 (2d Cir. 2009).

20       Substantial evidence supports the agency’s conclusion

21   that Lin did not testify credibly regarding her forced

22   abortion.    Particular deference is given to the trier of

23   fact’s assessment of demeanor.       See Majidi v. Gonzales, 430

                                      2
 1   F.3d 77, 81 n.1 (2d Cir. 2005).     In finding Lin not credible,

 2   the IJ reasonably relied in part on her demeanor, noting that,

 3   while Lin started crying during her testimony that she was

 4   dragged to the hospital by the village cadres, “in the midst

 5   of this apparent display of emotion, she looked toward the

 6   bench twice and smiled slightly.”    The IJ characterized Lin as

 7   “wish[ing] the [IJ] to observe this display of emotion,” and

 8   “question[ed] whether it was genuine emotion or an attempt to

 9   influence the” IJ.    Because the IJ was in the best position to

10   observe Lin’s manner while testifying, we afford her partial

11   demeanor finding particular deference.    See Zhou Yun Zhang v.

12   INS, 386 F.3d 66, 73-74 (2d Cir. 2004), overruled on other

13   grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d

14   296 (2d Cir. 2007).

15       The IJ’s demeanor finding was further supported by

16   specific examples of inconsistencies in the record.    See Li

17   Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.

18   2006) (“We can be still more confident in our review of

19   observations about an applicant’s demeanor where, as here,

20   they are supported by specific examples of inconsistent

21   testimony.”).   As the IJ reasonably noted, in her written

22   statement, Lin claimed that she had undergone an abortion in

23   December 1997, whereas at her hearing, Lin testified that she

                                     3
 1   underwent a forced abortion in December 1998.    Lin argues

 2   that, during her testimony, she corrected herself and

 3   testified that the abortion had taken place in 1997.     Although

 4   Lin did correct her testimony regarding the date, the fact

 5   that the IJ failed directly to consider the explanation does

 6   not present a basis for granting the petition for review.     Lin

 7   did not, and does not now, explain the reason she testified

 8   inconsistently regarding the date.    Because this inconsistency

 9   was apparent, the IJ was not required to actively solicit an

10   explanation before relying on the inconsistency to support an

11   adverse credibility finding.   See Majidi, 430 F.3d at 81.

12        Further, as the IJ noted, Lin testified that she first

13   discovered her pregnancy in China when she went to a physician

14   after she began feeling nauseous, and that the physician told

15   her that she was “probably” pregnant.    Later, after Lin

16   testified that the physician had performed a urine test to

17   determine whether she was pregnant, the IJ asked her why the

18   physician would have said that Lin was “probably” pregnant if

19   she had confirmed it with a test.    Lin responded, “What I

20   meant was I did not feel that way.    She told me I am

21   pregnant.”   The IJ reasonably declined to credit this

22   explanation, as it did not actually explain the inconsistency,

23   particularly in light of Lin’s testimony that she visited the

                                    4
 1   physician because she was nauseous.    Further, Lin does not

 2   challenge the BIA’s finding that her hearing testimony was

 3   inconsistent with her written statement, which reflected that,

 4   by the time she visited the doctor, she had already taken a

 5   pregnancy test and received a positive result.

 6       The IJ also reasonably relied on Lin’s inconsistent

 7   testimony regarding whether, with either of her pregnancies in

 8   the United States, she had told her treating physicians about

 9   the abortion.   In addition to noting the inconsistencies in

10   this testimony, the IJ characterized Lin as amending her

11   testimony after she “sensed the skepticism” that her answers

12   engendered, and this assessment of Lin’s demeanor is entitled

13   to deference.   See id. at 81 n.1.    Further, the IJ reasonably

14   declined to credit Lin’s explanation that she chose not to

15   tell her physicians about the abortion because they were

16   Chinese, noting that she claimed “unconvincingly that she

17   would rather risk her pregnancies than disclose the claimed

18   abortion to her physicians.”

19       Lin also argues that the IJ erred in failing to consider

20   either that Lin’s memory was faulty because the events about

21   which she was testifying had occurred 12 years in the past, or

22   that she came from a “persecuting environment” and was

23   embarrassed and ashamed by the abortion.    Although each of

                                    5
 1   these explanations may plausibly account for the

 2   inconsistencies in Lin’s testimony, neither is sufficient to

 3   compel the conclusion that Lin’s testimony was otherwise

 4   credible.     See id. at 80 (“A petitioner must do more than

 5   offer a ‘plausible’ explanation for his inconsistent

 6   statements to secure relief; he must demonstrate that a

 7   reasonable fact-finder would be compelled to credit his

 8   testimony.” (internal quotation marks omitted)).     Accordingly,

 9   the agency did not err in denying Lin’s application for

10   withholding of removal.

11       For the foregoing reasons, the petition for review is

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

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

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

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

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

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

18   34(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk

21




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