         08-4235-ag
         Lin v. Holder
                                                                                       BIA
                                                                                 Harbeck, IJ
                                                                               A200-126-076
                              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 1 st day of February, two thousand ten.
 5
 6       PRESENT:
 7                           ROSEMARY S. POOLER,
 8                           ROBERT D. SACK,
 9                           DEBRA ANN LIVINGSTON,
10                                        Circuit Judges.
11
12       _______________________________________
13
14       NENG YING LIN,
15                Petitioner,
16
17                           v.                                 08-4235-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., ATTORNEY GENERAL, *
20       and BOARD OF IMMIGRATION APPEALS
21                Respondents.
22       ______________________________________
23
24
25
26
27


                         *
                    Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
             Attorney General Eric H. Holder, Jr., is automatically substituted
             for former Attorney General Michael B. Mukasey as respondent in this
             case.
   1   FOR PETITIONER:        John Z. Zhang, New York, New York.
   2
   3   FOR RESPONDENTS:       Gregory G. Katsas, Assistant
   4                          Attorney General, Civil Division,
   5                          Mary Jane Candaux, Assistant
   6                          Director, Office of Immigration
   7                          Litigation, Michael C. Heyse, Trial
   8                          Attorney, Office of Immigration
   9                          Litigation, Civil Division, United
  10                          States Department of Justice,
  11                          Washington, D.C.
  12
  13       UPON DUE CONSIDERATION of this petition for review of a

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

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

  16   is DENIED.

17         Petitioner Neng Ying Lin, a native and citizen of the

18     People’s Republic of China, seeks review of a July 31, 2008

19     order of the BIA affirming the May 10, 2007 decision of

20     Immigration Judge (“IJ”) Dorothy Harbeck denying his

21     applications for asylum, withholding of removal, and relief

22     under the Convention Against Torture (“CAT”).   In re Neng

23     Ying Lin, No. A200 126 076 (B.I.A. July 31, 2008), aff’g No.

24     A200 126 076 (Immig. Ct. N.Y. City May 10, 2007).   We assume

25     the parties’ familiarity with the underlying facts and

26     procedural history in this case.

27         When the BIA agrees with the IJ’s conclusion that a

28     petitioner is not credible and, without rejecting any of the

29     IJ’s grounds for decision, emphasizes particular aspects of

                                    2
 1   that decision, this Court reviews both the BIA’s and IJ’s

 2   opinions — or more precisely, the Court reviews the IJ’s

 3   decision including the portions not explicitly discussed by

 4   the BIA.   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d

 5   Cir. 2005).   We review the agency’s factual findings,

 6   including adverse credibility findings, under the

 7   substantial evidence standard.     8 U.S.C. § 1252(b)(4)(B);

 8   see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).

 9   For asylum applications governed by the REAL ID Act of 2005,

10   the agency may, considering the totality of the

11   circumstances, base a credibility finding on an asylum

12   applicant’s demeanor, the plausibility of his or her

13   account, and inconsistencies in his or her statements,

14   without regard to whether they go “to the heart of the

15   applicant’s claim.”    8 U.S.C. § 1158(b)(1)(B)(iii).    “We

16   defer . . . to an IJ’s credibility determination unless,

17   from the totality of the circumstances, it is plain that no

18   reasonable fact-finder could make such an adverse

19   credibility ruling.”    Xiu Xia Lin v. Mukasey, 534 F.3d 162,

20   167 (2d Cir. 2008).    We review de novo questions of law and

21   the application of law to undisputed fact.     See, e.g.,

22   Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

23

                                    3
 1       Substantial evidence supports the IJ’s adverse

 2   credibility determination.     See Corovic, 519 F.3d at 95.

 3   Lin did not challenge before the BIA or this Court the IJ’s

 4   reliance on Lin’s demeanor and responsiveness and the IJ’s

 5   finding that Lin’s testimony concerning his wife’s inability

 6   to obtain an x-ray showing that she was sterilized was

 7   inconsistent.     Accordingly, any challenge to these findings

 8   is both unexhausted and waived, and these findings stand as

 9   valid bases for the IJ’s adverse credibility determination.

10   See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).

11       With respect to the findings Lin does challenge, they

12   are supported by substantial evidence.     In addition to

13   finding that Lin’s testimony was inconsistent concerning his

14   wife’s inability to obtain an x-ray, the IJ also found

15   implausible Lin’s testimony that his wife could not obtain

16   an x-ray at private hospitals in the city because private

17   hospitals do not have x-ray machines.     Although Lin

18   summarily asserts that his explanation was reasonable, such

19   an assertion does not suffice to demonstrate error in the

20   IJ’s decision.     See Ying Li v. BCIS, 529 F.3d 79, 82-83 (2d

21   Cir. 2008).     Therefore, the IJ also properly found that

22   Lin’s failure to provide evidence corroborating his wife’s

23   sterilization undermined his credibility.     See Xiao Ji Chen

                                     4
 1   v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir. 2006).

 2       Because the record does not compel the conclusion that

 3   Lin was credible, Xiu Xia Lin, 534 F.3d at 167, the IJ

 4   properly denied his applications for asylum, withholding of

 5   removal, and CAT relief.   See Paul v. Gonzales, 444 F.3d

 6   148, 156-57 (2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of

 7   Justice, 426 F.3d 520, 523 (2d Cir. 2005).

 8       For the foregoing reasons, the petition for review is

 9   DENIED.   As we have completed our review, the pending motion

10   for a stay of removal in this petition is DISMISSED as moot.

11
12                               FOR THE COURT:
13                               Catherine O’Hagan Wolfe, Clerk
14
15
16




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