         09-2138-ag
         Lin v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A093 389 927
                           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 21 st day of April, two thousand nine.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                        Circuit Judges.
11       _______________________________________
12
13       NING LIN,
14                       Petitioner,
15
16                        v.                                    09-2138-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:                Yu Zhang, Law Office of Fuhao Yang,
24                                      PLLC, New York.
25
1    FOR RESPONDENT:        Tony West, Assistant Attorney
2                           General; Carl H. McIntyre, Assistant
3                           Director; Gary J. Newkirk, Trial
4                           Attorney, Office of Immigration
5                           Litigation, Civil Division, United
6                           States Department of Justice,
7                           Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13       Petitioner Ning Lin, a native and citizen of the

14   People’s Republic of China, seeks review of an April 23,

15   2009 order of the BIA affirming the March 26, 2008 decision

16   of Immigration Judge (“IJ”) Robert D. Weisel denying his

17   application for asylum, withholding of removal, and relief

18   under the Convention Against Torture (“CAT”).     In re Ning

19   Lin, No. A093 389 927 (B.I.A. Apr. 23, 2009), aff’g No. A093

20   389 927 (Immig. Ct. N.Y. City Mar. 26, 2008).     We assume the

21   parties’ familiarity with the underlying facts and

22   procedural history in this case.

23       Under the circumstances of this case, we review both

24   the IJ’s and the BIA’s opinions.     Jigme Wangchuck v. DHS,

25   448 F.3d 524, 528 (2d Cir. 2006).     The applicable standards

26   of review are well-established.     8 U.S.C.


                                  2
1    § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

2    167 (2d Cir. 2008) (per curiam).

3        Substantial evidence supports the IJ’s adverse

4    credibility determination.   In finding Lin not credible, the

5    IJ found that he testified inconsistently regarding: (1) his

6    wife’s symptoms when she discovered her pregnancy in July

7    2005; (2) whether his wife was sterilized; and (3) how many

8    months pregnant his wife was in October 2005 when she was

9    allegedly forced to undergo an abortion.     Lin does not

10   challenge the first of these findings.     Nor does he

11   challenge the finding that he was not responsive “during

12   several portions of [his] testimony.”    Accordingly, these

13   findings stand as valid bases for the IJ’s adverse

14   credibility determination.   See Shunfu Li v. Mukasey, 529

15   F.3d 141, 147-48 (2d Cir. 2008).

16       Lin argues that the IJ misconstrued the record

17   regarding his testimony about his wife’s sterilization.

18   Having previously testified that his wife was forcibly

19   sterilized, Lin later testified that his wife had an IUD

20   inserted.   When the government’s attorney asked, “So she was

21   not sterilized, is that your answer?,” Lin replied, “No.”

22   Lin argues that he was responding to the question, “is that

23   your answer,” and not confirming the government’s assertion,

                                   3
1    “so she was not sterilized.”    Although a reasonable

2    adjudicator could have reached that conclusion, we do not

3    find that any reasonable factfinder would have been

4    compelled to reach a conclusion contrary to that of the IJ.

5    See Siewe v. Gonzales, 480 F.3d 160, 167-68 (2d Cir. 2007);

6    see also Ahmed v. Ashcroft, 286 F.3d 611, 612 (2d Cir.

7    2002).   Additionally, to the extent Lin argues that he was

8    confused by the line of questioning regarding how many

9    months pregnant his wife was when she allegedly had an

10   abortion, this argument is belied by the record.    Indeed,

11   after Lin gave multiple inconsistent answers in response to

12   the same question, the IJ asked whether Lin understood the

13   question, and he responded that he did.    Given that the IJ

14   provided Lin an opportunity to explain his answers, it was

15   not improper for the IJ to rely on his inconsistent

16   responses.    See Zhi Wei Pang v. BCIS, 448 F.3d 102, 109-10

17   (2d Cir. 2006); Ming Shi Xue v. BIA, 439 F.3d 111, 124 (2d

18   Cir. 2006).

19       Finally, despite Lin’s argument that the “BIA

20   erroneously affirmed the IJ’s adverse credibility finding

21   based on several minor inconsistencies,” under the REAL ID

22   Act, which applies to Lin’s application for relief, “an IJ

23   may rely on any inconsistency or omission in making an

                                    4
1    adverse credibility determination as long as the ‘totality

2    of the circumstances’ establishes that an asylum applicant

3    is not credible.”   Xiu Xia Lin, 534 F.3d at 167 (emphasis in

4    original).   Given Lin’s inconsistent testimony, substantial

5    evidence supports the IJ’s adverse credibility

6    determination.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

7    Lin, 534 F.3d at 167.   Therefore, the IJ properly denied his

8    applications for asylum, withholding of removal, and CAT

9    relief because the only evidence that Lin would be

10   persecuted or tortured depended on his credibility.   See

11   Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong

12   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.

13   2005).

14       For the foregoing reasons, the petition for review is

15   DENIED.   As we have completed our review, any pending motion

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

17   Any pending request for oral argument in this petition is

18   DENIED in accordance with Federal Rule of Appellate

19   Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
20
21
22                               FOR THE COURT:
23                               Catherine O’Hagan Wolfe, Clerk
24
25
26




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