         11-3722                                                               BIA
         Lin v. Holder                                                         A098 718 206



                           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 27th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                ROBERT D. SACK,
10                     Circuit Judges.
11       _____________________________________
12
13       ZHU LIN,
14                       Petitioner,
15
16                       v.                                     11-3722
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Michael Brown, New York, New York.
24
25       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
26                                      Attorney General; Douglas E.
27                                      Ginsburg, Assistant Director; Nicole
28                                      R. Prairie, Trial Attorney, Office
29                                      of Immigration Litigation, United
30                                      States Department of Justice,
31                                      Washington, D.C.
 1
 2       UPON DUE CONSIDERATION of this petition for review of a

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

 4   ORDERED, ADJUDGED, AND DECREED that the petition for review

 5   is DENIED.

 6       Petitioner Zhu Lin, a native and citizen of the

 7   People’s Republic of China, seeks review of an August 22,

 8   2011, decision of the BIA affirming the July 15, 2010,

 9   decision of Immigration Judge (“IJ”) Helen Sichel, which

10   denied his application for asylum, withholding of removal,

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

12   re Zhu Lin, No. A098 718 206 (B.I.A. Aug. 22, 2011), aff’g

13   No. A098 718 206 (Immig. Ct. N.Y. City, July 15, 2010).     We

14   assume the parties’ familiarity with the underlying facts

15   and procedural history in this case.

16       We have reviewed both the IJ’s and BIA’s decisions “for

17   the sake of completeness.”     See Zaman v. Mukasey, 514 F.3d

18   233, 237 (2d Cir. 2008).     The applicable standards of review

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

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

21   2008).

22       For asylum applications, like Lin’s, governed by the

23   REAL ID Act, the agency may, “[c]onsidering the totality of

                                     2
 1   the circumstances, . . . base a credibility finding on the

 2   demeanor, candor or responsiveness of the applicant, . . .

 3   [and] the consistency between the applicant’s or witness’s

 4   written or oral statements, . . . without regard to whether

 5   an inconsistency . . . goes to the heart of the applicant’s

 6   claim.”    See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

 7   F.3d at 167.    We “defer to an IJ’s credibility determination

 8   unless, from the totality of the circumstances, it is plain

 9   that no reasonable fact-finder could make such an adverse

10   credibility ruling.”    Xiu Xia Lin, 534 F.3d at 167.

11   Substantial evidence supports the agency’s adverse

12   credibility determination.

13          The agency based its adverse credibility determination

14   on inconsistencies between Lin’s original asylum

15   application, which omits any mention of Lin’s May 1998

16   altercation with family planning officials, and his amended

17   application, in which he states that family planning

18   officials showed up at his house following his wife’s

19   absence from her gynecological checkups, and dragged him to

20   the family planning office, where they detained and beat

21   him.    Lin argues that because the inconsistency is between

22   his original and amended asylum applications, and because


                                    3
 1   the IJ accepted the amended application with knowledge of

 2   the addition of the May 1998 incident, this inconsistency

 3   should not reflect negatively on his credibility.     This

 4   argument is without merit as the “IJ may rely on any

 5   inconsistency” in finding an applicant for asylum not

 6   credible.     See Xiu Xia Lin, 534 F.3d at 167 (emphasis in

 7   original).     Furthermore, because Lin’s explanation for the

 8   absence of the May 1998 event was itself inconsistent, in

 9   that he asserted both that the omission was due to a

10   translation error and alternately that he forgot to include

11   this event in his original application, the IJ was not

12   required to credit it.     See Majidi v. Gonzales, 430 F.3d 77,

13   80-81 (2d Cir. 2005) (the agency need not credit an

14   applicant’s explanations for inconsistent testimony unless

15   those explanations would compel a reasonable fact-finder to

16   do so).     Because the inconsistency relates to the incident

17   that formed the basis of the claim of past persecution, the

18   totality of the circumstances supports the adverse

19   credibility determination.     See 8 U.S.C.

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

21   the adverse credibility determination is supported by

22   substantial evidence, the agency did not err in denying


                                     4
 1   asylum, withholding of removal, and CAT relief, as all of

 2   the claims relied on the same factual predicate.    See Paul

 3   v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang

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

 5       For the foregoing reasons, the petition for review is

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

 7   removal that the Court previously granted in this petition

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

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

10   oral argument in this petition is DENIED in accordance with

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

12   Circuit Local Rule 34.1(b).

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




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