     15-990
     Lin v. Lynch
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A087 772 222
                         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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   26th day of April, two thousand sixteen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            JOSÉ A. CABRANES,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   JIANG LIN,
14            Petitioner,
15
16                  v.                                               15-990
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Lee Ratner, Law Offices of Michael
24                                       Brown, New York, NY.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General;
28                                       Jennifer P. Williams, Senior
29                                       Litigation Counsel; Jennifer A.
30                                       Bowen, Trial Attorney, Office of
31                                       Immigration Litigation, United
32                                       States Department of Justice,
33                                       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 is

4    DENIED.

5           Petitioner Jiang Lin, a native and citizen of the People’s

6    Republic of China, seeks review of a March 10, 2015, decision

7    of the BIA, affirming a January 7, 2013, decision of an

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

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).       In re Jiang Lin, No. A087 772 222 (B.I.A. Mar.

11   10, 2015), aff’g No. A087 772 222 (Immig. Ct. N.Y. City Jan.

12   7, 2013).          We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14          Under the circumstances of this case, we have considered

15   both    the    IJ’s   and   the   BIA’s    opinions   “for   the   sake   of

16   completeness.”        Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

17   524, 528 (2d Cir. 2006).          The applicable standards of review

18   are well established.         8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin

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

20          For asylum applications, like Lin’s, governed by the REAL

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

22   circumstances,” base a credibility finding “on the demeanor,

23   candor,       or   responsiveness     of    the   applicant,”      and    on


                                           2
1    inconsistencies between the applicant’s statements and other

2    evidence, “without regard to whether” they go “to the heart of

3    the applicant’s claim.”       8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

4    Xia Lin, 534 F.3d at 163-64.            “We defer . . . to an IJ’s

5    credibility determination unless, from the totality of the

6    circumstances, it is plain that no reasonable fact-finder could

7    make such an adverse credibility ruling.”        Xiu Xia Lin, 534 F.3d

8    at 167.

9        Substantial evidence supports the adverse credibility

10   determination, which was based on internal inconsistencies in

11   Lin’s testimony, inconsistencies between his testimony and

12   prior statements, and his demeanor.          As an initial matter, the

13   IJ did not err in relying on the record of the credible fear

14   interview.      It bore sufficient indicia of reliability.         Ming

15   Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009).         The record

16   includes a record of questions asked and answers given, the

17   interview was conducted in Lin’s best language, the questions

18   were designed to elicit his asylum claim, and there was no

19   indication that Lin was reluctant to answer questions.          Id. at

20   723-25.      Although Lin’s border interview did not bear the same

21   level   of    reliability,   even   absent    consideration   of   that

22   interview, substantial evidence supports the IJ’s adverse

23   credibility determination.      Xiu Xia Lin, 534 F.3d at 167.


                                         3
1          The record supports the agency’s conclusion that Lin’s

2    testimony was both internally inconsistent and inconsistent

3    with his credible fear interview.       He testified that he left

4    China to avoid persecution for distributing Falun Gong flyers,

5    and that he distributed those flyers to spread Falun Gong’s

6    message.   However, at his credible fear interview, he stated

7    that he distributed flyers to make money.        Lin’s assertion that

8    he was explaining what he told the police is not compelling;

9    he was responding to the question, “why did you want to

10   distribute the flyers.”     Majidi v. Gonzales, 430 F.3d 77, 80-81

11   (2d Cir. 2005).

12         The adverse credibility determination is further supported

13   by the IJ’s demeanor finding, to which we defer.        Id. at 81 n.1;

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

15   2006) (“We can be still more confident in our review of

16   observations about an applicant’s demeanor where, as here, they

17   are    supported     by   specific    examples     of   inconsistent

18   testimony.”).      Lin paused before responding to questions about

19   when he met the individual who recruited him to hand out flyers

20   and responded with a series of inconsistent dates.        And, he was

21   not responsive when asked how he learned to practice Falun Gong.

22         In light of Lin’s inconsistencies and his demeanor, the

23   totality of the circumstances supports the agency’s adverse


                                       4
1    credibility determination.     See 8 U.S.C. § 1158(b)(1)(B)(iii);

2    Xiu Xia Lin, 534 F.3d at 167.    Because asylum, withholding of

3    removal, and CAT relief all relied on the same factual

4    predicate,     the   adverse    credibility   determination     is

5    dispositive.    Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

6    2006).

7        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

14   34.1(b).

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




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