         11-3827                                                                       BIA
         Lin v. Holder                                                           Nelson, IJ
                                                                               A087 550 621

                           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 6th day of July, two thousand twelve.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                ROBERT A. KATZMANN,
 9                RICHARD C. WESLEY,
10                     Circuit Judges.
11       _______________________________________
12
13       HAI LIN,
14                       Petitioner,
15
16                       v.                                     11-3827
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                Edward J. Cuccia, Ferro & Cuccia,
24                                      New York, New York
25
26       FOR RESPONDENT:                Tony West, Assistant Attorney
27                                      General; David V. Bernal, Assistant
28                                      Director; Dara S. Smith, Trial
29                                      Attorney, 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       Hai Lin, a native and citizen of the People’s Republic

 6   of China, seeks review of an August 25, 2011, decision of

 7   the BIA affirming the March 24, 2010, decision of

 8   Immigration Judge (“IJ”) Barbara A. Nelson, which denied his

 9   application for asylum, withholding of removal, and relief

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

11   Lin, No. A087 550 621 (B.I.A. Aug. 25, 2011), aff’g No. A087

12   550 621 (Immig. Ct. N.Y. City Mar. 24, 2010).   We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision, including the portions not explicitly

17   discussed by the BIA.   Yun-Zui Guan v. Gonzales, 432 F.3d

18   391, 394 (2d Cir. 2005).   The applicable standards of review

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

20   also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.

21   2009).

22       For asylum applications governed by the amendments made

23   to the Immigration and Nationality Act by the REAL ID Act of

                                   2
 1   2005, the agency may, considering the totality of the

 2   circumstances, base a credibility finding on an asylum

 3   applicant’s “demeanor, candor, or responsiveness,” the

 4   plausibility of his account, and inconsistencies in his

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

 6   of the applicant’s claim.”   See 8 U.S.C.

 7   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

 8   167 (2d Cir. 2008).   We will “defer to an IJ’s credibility

 9   determination unless, from the totality of the

10   circumstances, it is plain that no reasonable fact-finder

11   could make” such a ruling.   Xiu Xia Lin, 534 F.3d at 167.

12   In this case, the agency reasonably based its adverse

13   credibility determination on the internal inconsistencies in

14   Lin’s testimony, and between his testimony, his asylum

15   application and his mother’s letter, as well as his

16   demeanor.

17       As the agency noted, there were discrepancies between

18   Lin’s mother’s letter, his asylum application, and his

19   testimony as to whether the police visited his home after he

20   was released from detention, and, if they did visit, who was

21   at the home when they arrived.    Lin also testified

22   inconsistently regarding the circumstances surrounding his


                                   3
 1   release from detention.   The agency properly relied on the

 2   cumulative effect of these inconsistencies to support the

 3   adverse credibility finding.    See 8 U.S.C.

 4   § 1158(b)(1)(B)(iii) (an IJ may base a credibility

 5   determination on “the totality of the circumstances, and all

 6   relevant factors”).   Moreover, Lin was provided with

 7   multiple opportunities to reconcile his testimony and he

 8   failed to present reasonable explanations for the

 9   discrepancies.    See Majidi v. Gonzales, 430 F.3d 77, 80-81

10   (2d Cir. 2005).

11       The adverse credibility determination is further

12   supported by the IJ’s demeanor finding. In finding Lin not

13   credible, the IJ reasonably relied in part on his demeanor,

14   noting that Lin was “extremely hesitant and evasive” when

15   responding to certain questions.   Because the IJ was in the

16   best position to observe Lin’s manner while testifying, we

17   afford this finding particular deference.      See Zhou Yun

18   Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir. 2004), overruled

19   on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice,

20   494 F.3d 296 (2d Cir. 2007).

21       Therefore, in this case, the totality of the

22   circumstances support the agency’s adverse credibility


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

 2   Lin, 534 F.3d at 167.     Because the adverse credibility

 3   determination is dispositive of Lin’s asylum claim, we do

 4   not reach his argument regarding the timeliness of his

 5   application.     Furthermore, because the only evidence of a

 6   threat to Lin’s life or freedom depended upon his

 7   credibility, the adverse credibility determination in this

 8   case necessarily precludes success on his claims for

 9   withholding of removal and CAT relief.     See Paul v.

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

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

12       Before this Court, Lin asserts that because the IJ

13   erred in finding that he had not proved by clear and

14   convincing evidence his date of entry into the United

15   States, the entirety of the IJ’s adverse credibility

16   determination was tainted.     Because Lin is raising this

17   argument for the first time before this Court, we decline to

18   consider it.     See Lin Zhong v. U.S. Dep’t of Justice, 480

19   F.3d 104, 119-20, 124 (2d Cir. 2007); Foster v. INS, 376

20   F.3d 75, 78 (2d Cir. 2004).

21       For the foregoing reasons, the petition for review is

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

23   removal that the Court previously granted in this petition
                                     5
1   is VACATED, and any pending motion for a stay of removal in

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

3   oral argument in this petition is DENIED in accordance with

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

5   Circuit Local Rule 34.1(b).

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




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