         12-657
         Lin v. Holder
                                                                                        BIA
                                                                                   Sichel, IJ
                                                                               A095 673 960
                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 30th day of August, two thousand thirteen.
 5
 6       PRESENT:
 7                DEBRA ANN LIVINGSTON,
 8                DENNY CHIN,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       DUNG MIN LIN, AKA RICHARD TRAN,
14                Petitioner,
15
16                       v.                                     12-657
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Zhong Yue Zhang, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Jennifer Paisner
27                                     Williams, Anthony C. Payne, Senior
28                                     Litigation Counsel; Carla J. Weaver,
29                                     Law Clerk, Office of Immigration
30                                     Litigation, United States Department
31                                     of Justice, 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        Dung Min Lin, a native and citizen of the People’s

 6   Republic of China, seeks review of a February 1, 2012,

 7   decision of the BIA affirming the March 18, 2010, decision

 8   of Immigration Judge (“IJ”) Helen Sichel, denying his

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).1     In re Dung

11   Min Lin, a.k.a. Richard Tran, No. A095 673 960 (B.I.A. Feb.

12   1, 2012), aff’g No. A095 673 960 (Immig. Ct. N.Y. City Mar.

13   18, 2010).   We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15        We review the IJ’s decision as supplemented by the BIA.

16   See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

17   The applicable standards of review are well-established.

18   See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

19   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).



          1
               The BIA noted that Lin did not pursue the CAT claim in
     his appeal to the BIA and, likewise, he has not pursued that
     claim in his brief to this Court. Accordingly, we deem the CAT
     claim abandoned. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
     542 n.1 (2d Cir. 2005).

                                    2
 1       For asylum applications governed by the REAL ID Act,

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

 3   considering the totality of the circumstances, base a

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

 5   plausibility of his account, and inconsistencies in his

 6   statements, without regard to whether they go “to the heart

 7   of the applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii).

 8   We “defer therefore to an IJ’s credibility determination

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

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

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

12   substantial evidence supports the agency’s adverse

13   credibility determination.

14       In finding Lin not credible, the agency reasonably

15   relied on inconsistent statements in the record regarding

16   how Lin’s parents learned of his purported arrest.     See Xiu

17   Xia Lin, 534 F.3d at 165-66; see also Majidi v. Gonzales,

18   430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must do more

19   than offer a plausible explanation for his inconsistent

20   statements to secure relief; he must demonstrate that a

21   reasonable fact-finder would be compelled to credit his

22   testimony.” (internal quotation marks and emphasis

23   omitted)).   The IJ further reasonably relied, for example,

                                   3
 1   on an inconsistency between Lin’s statement at an airport

 2   interview that he was arrested for carrying a yellow Falun

 3   Gong flag in the street and his testimony that he was

 4   arrested for passing out flyers and did not carry a flag.

 5   See Xiu Xia Lin, 534 F.3d at 166-67; see also Ramsameachire

 6   v. Ashcroft, 357 F.3d 169, 179-81 (2d Cir. 2004) (requiring

 7   the agency to assess the reliability of an airport interview

 8   and recognizing the reliability of a verbatim transcript).

 9       The agency also did not err in relying on Lin’s

10   omission from his asylum application of his assertion that

11   he required medical treatment for a burn caused by

12   government officials while he was in detention.   See Xiu Xia

13   Lin, 534 F.3d at 166 n.3 (“An inconsistency and an omission

14   are . . . functionally equivalent.”).   Although asylum

15   applicants are not required to list every incident or

16   provide every detail in their asylum applications because

17   the application form provides only limited space, see

18   Pavlova v. INS, 441 F.3d 82, 90 (2d Cir. 2006), the agency

19   was not compelled to credit Lin’s explanation that he was

20   unable to provide such details as he attached to his

21   application a three-page statement that included numerous

22   facts irrelevant to his claim of past persecution.     See


                                  4
 1   Majidi, 430 F.3d at 80-81; see also Xiu Xia Lin, 534 F.3d at

 2   166-67.

 3       The IJ reasonably concluded that Lin’s testimony was

 4   further undermined by his admission that he made false

 5   statements during his airport interview thereby indicating a

 6   willingness to lie to remain in the country.     See Siewe v.

 7   Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).    Given these

 8   false statements, as well as the record inconsistencies, the

 9   agency’s adverse credibility determination is supported by

10   substantial evidence.     See Xiu Xia Lin, 534 F.3d at 167.

11   Accordingly, the agency did not err in denying asylum and

12   withholding of removal.     See Paul v. Gonzales, 444 F.3d 148,

13   156 (2d Cir. 2006).

14       For the foregoing reasons, the petition for review is

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

16   removal that the Court previously granted in this petition

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

18

19

20

21

22

23
                                     5
1   this petition is DENIED as moot.    Any pending request for

2   oral argument in this petition is DENIED in accordance with

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

4   Circuit Local Rule 34.1(b).

5                                 FOR THE COURT:
6                                 Catherine O’Hagan Wolfe, Clerk
7
8




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