         12-4318
         Lin v. Holder
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A200 921 074
                           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 2nd day of October, two thousand thirteen.
 5
 6       PRESENT:
 7
 8                       ROBERT A. KATZMANN,
 9                            Chief Judge,
10                       BARRINGTON D. PARKER,
11                       REENA RAGGI,
12                            Circuit Judges.
13
14       _______________________________________
15
16       CHANG HUI LIN,
17                Petitioner,
18
19                       v.                                     12-4318
20                                                              NAC
21       ERIC H. HOLDER, JR., UNITED STATES
22       ATTORNEY GENERAL,
23                Respondent.
24       _______________________________________
25
26       FOR PETITIONER:               Gary J. Yerman, New York, New York.
27
28       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
29                                     Attorney General; David V. Bernal,
 1                             Assistant Director; Stuart S.
 2                             Nickum, Trial Attorney, Office of
 3                             Immigration Litigation, United
 4                             States Department of Justice,
 5                             Washington, D.C.
 6
 7       UPON DUE CONSIDERATION of this petition for review of a

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

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

10   is DENIED.

11       Petitioner Chang Hui Lin, a native and citizen of the

12   People’s Republic of China, seeks review of an October 4,

13   2012, decision of the BIA affirming the June 6, 2011,

14   decision of Immigration Judge (“IJ”) Jesse B. Christensen,

15   which denied his application for asylum, withholding of

16   removal, and relief under the Convention Against Torture

17   (“CAT”).     In re Chang Hui Lin, No. A200 921 074 (B.I.A. Oct.

18   4, 2012), aff’g No. A200 921 074 (Immig. Ct. N.Y. City Jun.

19   6, 2011).    We assume the parties’ familiarity with the

20   underlying facts and procedural history in this case.

21       Under the circumstances of this case, we have reviewed

22   the IJ’s decision as supplemented by the BIA.     See Yan Chen

23   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The

24   applicable standards of review are well-established.       See

25   8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,


                                     2
 1   562 F.3d 510, 513 (2d Cir. 2009).      For applications such as

 2   Lin’s, governed by the amendments made to the Immigration

 3   and Nationality Act by the REAL ID Act of 2005, the agency

 4   may, “[c]onsidering the totality of the circumstances . . .

 5   base a credibility determination on the demeanor, candor, or

 6   responsiveness of the applicant or witness, the inherent

 7   plausibility of [his or her] account,” and inconsistencies

 8   in his or her statements, “without regard to whether . . .

 9   [they go] to the heart of the applicant’s claim.”      See

10   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534

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

12   I.   One-Year Bar

13        Pursuant to 8 U.S.C. § 1158(a)(3), we lack jurisdiction

14   to review the agency’s determination that an asylum

15   application is untimely.   See 8 U.S.C. § 1158(a)(2)(B).

16   Notwithstanding these provisions, however, we retain

17   jurisdiction to review “constitutional claims or questions

18   of law.”   8 U.S.C. § 1252(a)(2)(D).     While Lin raises two

19   arguments which may be construed as questions of law, namely

20   that the agency’s adverse credibility determination was

21   improperly used to find he had not timely filed his asylum

22   application, and that the agency failed to consider the date


                                   3
 1   of arrival listed on the Notice to Appear, he failed to

 2   raise these arguments before the BIA, and thus they are

 3   unexhausted.    See Lin Zhong v. U.S. Dep’t of Justice, 480

 4   F.3d 104, 119-20 (2d Cir. 2007).    Regardless, the IJ

 5   explicitly noted that he would also deny asylum based on

 6   credibility, and that finding is dispositive of Lin’s

 7   petition.

 8   II. Asylum, Withholding of Removal, and CAT

 9       In finding Lin not credible, the agency reasonably

10   relied on Lin’s inconsistent testimony.    See Xiu Xia Lin v.

11   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).     During his

12   merits hearing, Lin changed his testimony regarding whether

13   he had ever had his own passport and whether he had ever

14   left China before 2010.    Under the REAL ID Act, the agency

15   properly relied on this inconsistency as a basis for an

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

17   §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d

18   at 167 (providing that an IJ may support an adverse

19   credibility determination with “any inconsistency or

20   omission”).    In addition, as the IJ noted, this

21   inconsistency goes to the heart of Lin’s claim, as he

22   testified that he left China in 2008 to escape persecution.


                                    4
 1   See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430

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

 3       We also defer to the agency’s demeanor finding.     Li Zu

 4   Guan v. I.N.S., 453 F.3d 129, 140 (2d Cir. 2006).    Here, the

 5   IJ observed that when Lin was asked whether he had been in

 6   South America in 2008, after having just testified that he

 7   had never left China before 2010, he became extremely

 8   nervous and began to laugh.   The IJ further noted that Lin

 9   did not similarly react during any of his other testimony,

10   despite stating that he was nervous throughout the hearing.

11   We defer to the IJ’s assessment of Lin’s demeanor,

12   particularly as it is further supported by “specific

13   example[s] of inconsistent testimony” regarding whether Lin

14   had ever left China before 2010.   See Li Hua Lin v. U.S.

15   Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006); see also

16   Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104, 113 (2d

17   Cir. 2005).

18       Furthermore, Lin’s claim that the agency erred because

19   it did not consider his background evidence is without

20   merit.   See Xiao Ji Chen, 471 F.3d at 338 n.17 (presuming

21   that the “IJ has taken into account all of the evidence . .

22   . unless the record compellingly suggests otherwise”).      The

23   IJ found that Lin had failed to credibly establish that he
                                   5
 1   was a practicing Christian.     See Yan Chen, 417 F.3d at 272-

 2   73.    Accordingly, the agency’s adverse credibility

 3   determination is supported by substantial evidence.     Xiu Xia

 4   Lin, 534 F.3d at 167.

 5   III.       Remand

 6          We review the BIA’s denial of a motion to remand for

 7   abuse of discretion.    Li Yong Cao v. Dep’t of Justice, 421

 8   F.3d 149, 156-57 (2d Cir. 2005); Matter of Coelho, 20 I&N

 9   Dec. 464, 474 (BIA 1992).     Here, the agency did not abuse

10   its discretion in denying Lin’s motion to remand, as the

11   medical document he submitted was previously available.        See

12   8 C.F.R. § 1003.2(c)(1).    While Lin argues the medical

13   document was previously unavailable because he did not ask

14   family members to obtain it until after his hearing, this

15   does not mean the document itself was unavailable.     Id.

16   Furthermore, even if the document constituted new evidence,

17   it would not be “material,” as it does not address Lin’s

18   credibility problems, which were fatal to his application.

19   Li Hua Lin, 453 F.3d at 107.

20          For the foregoing reasons, the petition for review is

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

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

23   Any pending request for oral argument in this petition is
                                     6
 1   DENIED in accordance with Federal Rule of Appellate

 2   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

 3                              FOR THE COURT:
 4                              Catherine O’Hagan Wolfe, Clerk
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