         09-1291-ag
         Lin v. Holder
                                                                                            BIA
                                                                                   Balasquide, IJ
                                                                                   A098 940 029
                          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 7 th day of January,              two thousand ten.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11       _____________________________________
12
13       DE DONG LIN,
14                Petitioner,
15
16                       v.                                        09-1291-ag
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 Yee Ling Poon; Robert Duk-Hwan Kim,
24                                       New York, New York.
25
1    FOR RESPONDENT:        Tony West, Assistant Attorney
2                           General; John C. Cunningham, Senior
3                           Litigation Counsel; Remi Adalemo,
4                           Attorney, Office of Immigration
5                           Litigation, United States Department
6                           of Justice, Washington, D.C.
7
8        UPON DUE CONSIDERATION of this petition for review of a

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

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

11   is DENIED.

12       De Dong Lin, a native and citizen of the People’s

13   Republic of China, seeks review of a March 11, 2009 order of

14   the BIA, affirming the December 7, 2006 decision of

15   Immigration Judge (“IJ”) Javier E. Balasquide, which denied

16   his application for asylum, withholding of removal, and

17   relief under the Convention Against Torture (“CAT”).    In re

18   De Dong Lin, No. A098 940 029 (B.I.A. Mar. 11, 2009), aff’g

19   No. A098 940 029 (Immig. Ct. N.Y. City Dec. 7, 2006).     We

20   assume the parties’ familiarity with the underlying facts

21   and procedural history in this case.

22       As an initial matter, although Lin is challenging the

23   denial of relief in “asylum-only” proceedings, as opposed to

24   an actual removal order, we nevertheless have jurisdiction

25   under 8 U.S.C. § 1252(a)(1) because the denial of relief in

26   these circumstances is the functional equivalent of a


                                  2
1    removal order.   See Kanacevic v. INS, 448 F.3d 129, 134 (2d

2    Cir. 2006).

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

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

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

6    that decision, we review both the BIA’s and IJ’s opinions --

7    or more precisely, we review the IJ’s decision including the

8    portions not explicitly discussed by the BIA.     Yun-Zui Guan

9    v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).     We review

10   the agency’s factual findings, including adverse credibility

11   findings, under the substantial evidence standard.     8 U.S.C.

12   § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377,

13   379 (2d Cir. 2007).   We review de novo questions of law and

14   the application of law to undisputed fact.    Salimatou Bah v.

15   Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).    For applications

16   governed by the REAL ID Act of 2005, the agency may,

17   considering the totality of the circumstances, base a

18   credibility finding on an asylum applicant’s demeanor, the

19   plausibility of his or her account, and inconsistencies in

20   his or her statements, without regard to whether they go “to

21   the heart of the applicant’s claim.”   8 U.S.C.

22   § 1158(b)(1)(B)(iii); see also Matter of J-Y-C-, 24 I. & N.


                                   3
1    Dec. 260, 265 (BIA 2007).

2        Analyzed under the REAL ID Act, the agency’s adverse

3    credibility determination was supported by substantial

4    evidence.   In finding Lin’s testimony not credible, the IJ

5    relied in part on his demeanor, noting that his testimony

6    was hesitant and unconvincing, and that he was evasive at

7    times and unresponsive.     Because the IJ was in the best

8    position to observe Lin’s manner while testifying, we defer

9    to his demeanor finding.     See Zhou Yun Zhang v. INS, 386

10   F.3d 66, 73-74 (2d Cir. 2004) overruled in part on other

11   grounds by Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d

12   296, 305 (2d Cir. 2007) (en banc).

13       The IJ also reasonably relied on a number of

14   inconsistencies in Lin’s testimony.     For example, the IJ

15   noted that after Lin initially testified that his father

16   paid to bail him out of detention using money that was in

17   his home, when it was pointed out that the bail amount

18   exceeded his father’s yearly income, Lin changed his

19   testimony and stated that his father borrowed the money.

20   Similarly, the IJ observed that although Lin’s asylum

21   application indicated that he went into hiding after he was

22   released from detention, he testified that he spent five or


                                     4
1    six days with his parents before fleeing.   Lin argues that

2    these and other inconsistencies can be explained away by

3    interpreting the evidence in a different manner.     Yet, our

4    review does not permit us to ask whether Lin’s

5    interpretation of the evidence is plausible.     Rather, we ask

6    only whether the IJ’s interpretation was erroneous because

7    it was impermissible.   Here, we cannot find that it was.

8    See Xian Tuan Ye v. Dep’t of Homeland Security, 446 F.3d

9    289, 294 (2d Cir. 2006) (“our review does not permit us to

10   engage in an independent evaluation of the cold record or

11   ask ourselves whether, if we were sitting as fact finders,

12   we would credit or discredit an applicant’s testimony”);

13   Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where

14   there are two permissible views of the evidence, the

15   factfinder’s choice between them cannot be clearly

16   erroneous.”) (quoting Anderson v. Bessemer City, 470 U.S.

17   564, 574, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985)).

18       The IJ also did not err in drawing an adverse inference

19   from Lin’s inability to name his purported roommate of one

20   year, the only witness to Lin’s Falun Gong practice in the

21   United States, after repeated efforts by the IJ to elicit

22   the name.   See 8 U.S.C. § 1158(b)(1)(B)(iii).   Contrary to

23   Lin’s arguments, the reasons for the IJ’s incredulity are
                                  5
1    evident.       See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d

2    Cir. 2007). Moreover, the IJ was not required to credit

3    Lin’s explanation that he referred to his roommate as

4    “little brother.”       See Majidi v. Gonzales, 430 F.3d 77, 80-

5    81 (2d Cir. 2005).

6        Because Lin’s testimony was not otherwise credible, the

7    IJ did not err, under the provisions of the REAL ID Act, in

8    drawing an adverse inference as to Lin’s credibility from

9    his failure to obtain corroboration of his claims.       See 8

10   U.S.C. § 1158(b)(1)(B)(ii); Biao Yang v. Gonzales, 496 F.3d

11   268, 273 (2d Cir. 2007).

12       Under the REAL ID Act, these findings were sufficient

13   to support the agency’s adverse credibility determination.

14   See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin, 534 F.3d

15   at 167.       Because the agency’s adverse credibility

16   determination was supported by substantial evidence, it

17   reasonably denied Lin’s applications for asylum, withholding

18   of removal, and CAT relief, to the extent all three claims

19   shared the same factual predicate. *     See Paul v. Gonzales,


               *
             We are without jurisdiction to review Lin’s
       unexhausted due process claim. See 8 U.S.C.
       § 1252(d)(1). We are unpersuaded by Lin’s argument that
       his due process claim is “subsidiary” to that which he
       raised before the BIA. See Gill v. INS, 420 F.3d 82, 87
       (2d Cir. 2005).
                                  6
1    444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S.

2    Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2006).

3    Finally, we deem   abandoned Lin’s CAT claim based on his

4    purportedly illegal departure from China.   See Gui Yin Liu

5    v. INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007).

6        For the foregoing reasons, the petition for review is

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

8    removal that the Court previously granted in this petition

9    is VACATED, and any pending motion for a stay of removal in

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

11   oral argument in this petition is DENIED in accordance with

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

13   Circuit Local Rule 34(b).

14                               FOR THE COURT:
15                               Catherine O’Hagan Wolfe, Clerk
16
17                               By:___________________________




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