         12-3569
         Lin v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A088 638 868
                          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 24th day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                RICHARD C. WESLEY,
 8                GERARD E. LYNCH,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       LIQIU LIN,
14                Petitioner,
15
16                       v.                                     12-3569
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Michael Brown, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Principal Deputy
26                                     Assistant Attorney General; Douglas
27                                     E. Ginsburg, Assistant Director;
28                                     Karen L. Melnik, Trial Attorney;
29                                     Caroline Arbaugh, Law Clerk, Office
 1                          of Immigration Litigation, United
 2                          States Department of Justice,
 3                          Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Liqiu Lin, a native and citizen of the People’s

10   Republic of China, seeks review of a August 21, 2012,

11   decision of the BIA affirming the June 7, 2011, decision of

12   Immigration Judge (“IJ”) Alan A. Vomacka, which denied his

13   application for asylum, withholding of removal, and relief

14   under the Convention Against Torture (“CAT”).     In re Liqiu

15   Lin, No. A088 638 868 (B.I.A. Aug. 21, 2012), aff’g No. A088

16   638 868 (Immig. Ct. N.Y. City June 7, 2011).    We assume the

17   parties’ familiarity with the underlying facts and

18   procedural history in this case.

19       Under the circumstances of this case, we have reviewed

20   the IJ’s decision as modified by the BIA, considering only

21   those grounds for the adverse credibility determination that

22   were affirmed by the BIA.   See Xue Hong Yang v. U.S. Dep’t

23   of Justice, 426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v.

24   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The applicable

25   standards of review are well-established.     See 8 U.S.C.

                                   2
 1   § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

 2   510, 513 (2d Cir. 2009).

 3       For applications such as Lin’s, governed by the

 4   amendments made to the Immigration and Nationality Act by

 5   the REAL ID Act of 2005, the agency may, considering the

 6   totality of the circumstances, base a credibility finding on

 7   the plausibility of an applicant’s account, as well as

 8   inconsistencies in his statements, without regard to whether

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

10   §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see Xiu Xia Lin v.

11   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).

12   Furthermore, for purposes of a credibility determination,

13   “[a]n inconsistency and an omission are . . . functionally

14   equivalent.”    Xiu Xia Lin, 534 F.3d at 166, n.3.   We “defer

15   . . . to an IJ’s credibility determination unless, from the

16   totality of the circumstances, it is plain that no

17   reasonable fact-finder could make such an adverse

18   credibility ruling.”    Id. at 167.   In this case, the agency

19   reasonably based its adverse credibility finding on the

20   discrepancies between Lin’s asylum application and his

21   testimony, as well as the implausibility of his account, and

22   his demeanor.


                                    3
 1       Lin asserted in his asylum application that police in

 2   China detained him and “interrogated [him] in the police

 3   station” about his Falun Gong activities, while he testified

 4   that the police interrogated him at home, prior to arresting

 5   him, as well.     Lin further testified that he sought medical

 6   treatment at a private clinic for injuries that he sustained

 7   in custody, but did not mention in his asylum application

 8   that he received treatment for his injuries.     That these

 9   discrepancies do not address the heart of Lin’s claim is

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

11   534 F.3d at 167.     The agency also reasonably concluded that

12   it was implausible that Lin voluntarily appeared before a

13   divorce court shortly before his departure from China when,

14   at the same time, he asserted that he was in hiding to evade

15   detection by Chinese authorities.     See Wensheng Yan v.

16   Mukasey, 509 F.3d 63, 68 (2d Cir. 2007).     The IJ’s

17   observations regarding Lin’s demeanor while testifying —

18   that he hesitated and spoke to himself under his breath

19   before answering questions — bolsters the agency’s

20   conclusion.     We accord particular deference to the trier of

21   fact’s assessment of demeanor, as he was in the best

22   position to observe Lin’s manner while testifying.      See Tu

23   Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006).

                                     4
 1       Finally, Lin failed to provide reasonably available

 2   evidence to corroborate his claim.     During his testimony, he

 3   asserted that his parents paid bail in order to secure his

 4   release from police custody, but submitted no documentation

 5   to confirm the payment.     Lin first maintained that his

 6   father refused to tell him whether the police had provided a

 7   receipt, and then asserted that the Chinese government had

 8   retained the receipt.     Lin’s asylum application and the

 9   letter from his father make no mention of any bail payment

10   at all.   Because the agency had already called Lin’s

11   credibility into question due to his inconsistencies and

12   implausibilities, it did not err in relying on the lack of

13   corroboration as further support for the adverse credibility

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

15   (2d Cir. 2007).   Moreover, the agency did not err in

16   rejecting Lin’s varying explanations for his failure to

17   provide the requested corroborating evidence.     See Majidi v.

18   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

19       Given the discrepancies, implausibilities, and lack of

20   corroboration, the totality of the circumstances supports

21   the agency’s credibility determination.     See 8 U.S.C.

22   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

23   Moreover, the adverse credibility finding necessarily
                                     5
 1   precludes success on Lin’s claims for asylum, withholding of

 2   removal, and CAT relief, as all three claims share the same

 3   factual predicate.   See Paul v. Gonzales, 444 F.3d 148, 156

 4   (2d Cir. 2006); Xue Hong Yang, 426 F.3d at 523.

 5       For the foregoing reasons, the petition for review is

 6   DENIED and the pending motion for a stay of removal in this

 7   petition is DENIED as moot.

 8                                 FOR THE COURT:
 9                                 Catherine O’Hagan Wolfe, Clerk
10




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