    13-3723
    Lin v. Lynch
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A087 916 040
                        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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    29th day of December, two thousand fifteen.

    PRESENT:
             ROBERT D. SACK,
             REENA RAGGI,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    LAN YING LIN,
             Petitioner,

                   v.                                                       13-3723
                                                                            NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                        Troy   Nader    Moslemi,              Esq.,
                                           Flushing, New York.

    FOR RESPONDENT:                        John D. Williams, Trial Attorney,
                                           Office of Immigration Litigation,
                                           United   States   Department   of
                                           Justice, Washington, D.C.

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    UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

    Petitioner Lan Ying Lin, a native and citizen of China,

seeks review of a September 16, 2013 decision of the BIA

affirming an October 19, 2011 decision of an Immigration Judge

(“IJ”) denying Lin’s application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”).    In re Lan Ying Lin, No. A087 916 040 (B.I.A. Sept.

16, 2013), aff’g No. A087 916 040 (Immig. Ct. N.Y.C. Oct. 19,

2011).    We assume the parties’ familiarity with the underlying

facts and procedural history in this case, which we reference

only as necessary to explain our decision to deny the petition.

    Under the circumstances of this case, “we review the

decision of the IJ as supplemented by the BIA.”         Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).        Applying the

“substantial evidence” standard, “we uphold the IJ's factual

findings if they are supported by reasonable, substantial and

probative evidence in the record.”     Weng v. Holder, 562 F.3d

510, 513 (2d Cir. 2009) (internal quotation marks omitted).


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“By contrast, we review de novo questions of law and the BIA's

application   of   law    to   undisputed   fact.”   Id.   (internal

alterations and quotation marks omitted); see also 8 U.S.C. §

1252(b)(4).

    The IJ’s decision, and the BIA’s affirmance, was based in

part upon an adverse credibility finding against Lin.           For

asylum applications governed by the REAL ID Act, such as Lin’s,

the IJ may, considering the totality of the circumstances, base

a credibility finding on an asylum applicant’s demeanor,

candor, or responsiveness, and on inconsistencies in her

statements and other record evidence without regard to whether

they go “to the heart of the applicant’s claim.”            8 U.S.C.

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

164 (2d Cir. 2008).      Here, the totality of the circumstances,

including the inconsistencies in Lin’s testimony and the lack

of corroborating evidence, support the IJ’s adverse credibility

determination.

    Notably, although Lin claimed that Chinese officials

arrested, detained, and beat her because she attended an

underground Christian church, her testimony as to these matters

was inconsistent.        Thus, she first testified that she was

arrested in July 2009, but later testified that she began

                                   3
attending church in July 2009 and was arrested in August 2009.

The   IJ   acted      within    his   discretion       in   finding    Lin’s

explanation — that she misheard the question — unpersuasive.

See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).

Meanwhile, inconsistency was also evident in a letter from Lin’s

pastor in China, which stated that Lin began attending church

in July 2009, but was dated May 2001.

      Lin also testified that she worked at a factory for six

years, and that a friend at the factory introduced her to

Christianity.         This    was   inconsistent    with     the   Household

Register Lin submitted, which lists Lin’s occupation as a

farmer.    Moreover, the letter from this friend makes no mention

of the factory where they met.            See Xiu Xia Lin v. Mukasey, 534

F.3d at 166 n.3 (“A lacuna in an applicant's testimony or

omission in a document submitted to corroborate the applicant's

testimony, like a direct inconsistency between one or more of

those forms of evidence, can serve as a proper basis for an

adverse credibility determination.”).

      As   the   IJ    also    reasonably     found,   Lin’s   failure    to

rehabilitate her inconsistent testimony with corroborating

evidence     further         supported      the    adverse     credibility

determination.        See Biao Yang v. Gonzales, 496 F.3d 268, 273

                                      4
(2d Cir. 2007).    Lin’s husband did not testify or submit a

letter on her behalf, although he is present in the United

States, and Lin did not offer a compelling explanation for why

he did not testify.   See Yan Juan Chen v. Holder, 658 F.3d 246,

252-53 (2d Cir. 2011).   Nor did Lin submit a death certificate

after she claimed that it was her friend’s death in a car

accident that led her to the Christian faith.

    Thus, because the IJ’s adverse credibility finding is

supported by substantial evidence, it provides an adequate

basis for denying Lin asylum, withholding of removal, and CAT

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

F.3d at 167; see also Paul v. Gonzalez, 444 F.3d 148, 155–57

(2d Cir. 2006).   We, therefore, need not review its alternative

burden finding.   See INS v. Bagamasbad, 429 U.S. 24, 25 (1976).

    For the foregoing reasons, the petition for review is

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

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


                         FOR THE COURT:
                         Catherine O’Hagan Wolfe, Clerk of Court




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