        12-553
        Lin v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A089 770 111
                         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 30th day of August, two thousand thirteen.
 5
 6      PRESENT:
 7               DEBRA ANN LIVINGSTON,
 8               DENNY CHIN,
 9               CHRISTOPHER F. DRONEY,
10                    Circuit Judges.
11      _____________________________________
12
13      CHANG BING LIN, AKA CHANG BIN LIN,
14               Petitioner,
15
16                      v.                                     12-553
17                                                             NAC
18      ERIC H. HOLDER, JR., UNITED STATES
19      ATTORNEY GENERAL,
20               Respondent.
21      _____________________________________
22
23      FOR PETITIONER:                Richard Tarzia, Belle Mead, New
24                                     Jersey.
25
26      FOR RESPONDENT:                W. Daniel Shieh, Trial Attorney,
27                                     Jacob A. Bashyrov, Office of
28                                     Immigration Litigation, Civil
 1                          Division, for Stuart F. Delery,
 2                          Acting Assistant Attorney General
 3                          and Carl H. McIntyre, Jr., Assistant
 4                          Director, United States Department
 5                          of Justice, 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       Chang Bing Lin, a native and citizen of the People’s

12   Republic of China, seeks review of a January 19, 2012 order

13   of the BIA, affirming the June 23, 2010 decision of

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

15   application for asylum, withholding of removal, and relief

16   under the Convention Against Torture (“CAT”).       In re Chang

17   Bing Lin, No. A089 770 111 (B.I.A. Jan. 19, 2012), aff’g No.

18   A089 770 111 (Immig. Ct. N.Y. City June 23, 2010).       We

19   assume the parties’ familiarity with the underlying facts

20   and procedural history in this case.

21       Under the circumstances of this case, we review both

22   the BIA’s and IJ’s opinions.    Yun-Zui Guan v. Gonzales, 432

23   F.3d 391, 394 (2d Cir. 2005).       The applicable standards of

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

25   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).



                                     2
 1       For asylum applications such as Lin’s, governed by the

 2   REAL ID Act, the agency may, considering the totality of the

 3   circumstances, base a credibility finding on an asylum

 4   applicant’s demeanor, the plausibility of his account, and

 5   inconsistencies in his statements, without regard to whether

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

 7   § 1158(b)(1)(B)(iii).    We conclude that substantial evidence

 8   supports the agency’s determination that Lin did not testify

 9   credibly regarding his Falun Gong claim.1

10       In finding Lin not credible, the agency reasonably

11   relied on his failure to indicate during his credible fear

12   interview either that he practiced Falun Gong in China, or

13   that Chinese authorities targeted him on account of his

14   Falun Gong activities.    See Xiu Xia Lin v. Mukasey, 534 F.3d

15   162, 166-67 n.3 (2d Cir. 2008) (per curiam) (holding that

16   for purposes of analyzing a credibility determination, “[a]n

17   inconsistency and an omission are . . . functionally

18   equivalent”).   The agency also reasonably relied on

19   discrepancies between: (1) Lin’s testimony and asylum


           1
             As Lin does not challenge the IJ’s determination
       that his family planning claim was precluded by Shi Liang
       Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.
       2007), we do not address it. See Gui Yin Liu v. INS, 508
       F.3d 716, 723 n.6 (2d Cir. 2007).
                                    3
 1   application with regard to the length of time that he was in

 2   hiding prior to his departure from China; and (2) Lin’s

 3   testimony and both his asylum application and wife’s letter

 4   with regard to the number of times that Chinese authorities

 5   sought to arrest him for practicing Falun Gong.    See id. at

 6   167 (“[A]n IJ may rely on any inconsistency or omission in

 7   making an adverse credibility determination as long as the

 8   ‘totality of the circumstances’ establishes that an asylum

 9   applicant is not credible.”); see also Iouri v. Ashcroft,

10   487 F.3d 76, 81-82 (2d Cir. 2007) (holding that

11   discrepancies between an applicant’s asylum application and

12   testimony may support an adverse credibility determination).

13   Lin failed to provide compelling explanations for these

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

15   (2d Cir. 2005).

16       Furthermore, the IJ reasonably found implausible Lin’s

17   assertion that he practiced Falun Gong in Flushing, Queens

18   two to three days per week while working full-time and

19   residing in New Jersey six days per week.    See Wensheng Yan

20   v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2009) (holding that

21   where the IJ’s findings are “tethered to record evidence,

22   and there is nothing else in the record from which a firm


                                    4
 1   conviction of error could properly be derived,” we will not

 2   disturb the inherent implausibility finding).   Additionally,

 3   we find no error in the IJ’s reliance, in part, on Lin’s

 4   lack of knowledge of the Falun Gong exercises in light of

 5   his assertion that he had regularly practiced Falun Gong in

 6   the United States for two years.   See Rizal v. Gonzales, 442

 7   F.3d 84, 90 (2d Cir. 2006).

 8       Finally, the IJ reasonably declined to afford

 9   evidentiary weight to the photographs Lin submitted of his

10   Falun Gong practice, given that Lin failed to clarify the

11   identity of the photographer(s), admitted that two of the

12   photographs were taken near his attorney’s office solely for

13   litigation purposes, and the photographs depicted Lin

14   practicing alone, even though he testified that he practiced

15   with others.   See Biao Yang v. Gonzales, 496 F.3d 268, 273

16   (2d Cir. 2007) (holding that the agency may rely on a lack

17   of corroborative evidence where an applicant’s testimony is

18   not otherwise credible); see also Xiao Ji Chen v. U.S. Dep’t

19   of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that

20   the weight afforded to the applicant’s evidence in

21   immigration proceedings lies largely within the discretion

22   of the IJ).

23
                                   5
 1       Ultimately, because a reasonable fact-finder would not

 2   be compelled to conclude to the contrary regarding the

 3   agency’s inconsistency, implausibility, and lack of

 4   corroboration findings, the agency’s adverse credibility

 5   determination is supported by substantial evidence.

 6   See Xiu Xia Lin, 534 F.3d at 165-66.    The agency’s denial of

 7   Lin’s application for asylum, withholding of removal, and

 8   CAT relief was not in error as all three claims share the

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

10   156 (2d Cir. 2006) (withholding of removal); Xue Hong Yang

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

12   (CAT).

13       For the foregoing reasons, the petition for review is

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

15   removal that the Court previously granted in this petition

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

17   this petition is DENIED as moot.    Any pending request for

18   oral argument in this petition is DENIED in accordance with

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

20   Circuit Local Rule 34.1(b).

21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23
24




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