         09-2312-ag
         Lin v. Holder
                                                                                       BIA
                                                                                   Lamb, IJ
                                                                               A099 538 811
                           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 9 th day of March, two thousand ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                ROBERT A. KATZMANN,
 9                PETER W. HALL,
10                       Circuit Judges.
11       _______________________________________
12
13       BIN LIN,
14                       Petitioner,
15
16                        v.                                    09-2312-ag
17                                                              NAC
18       UNITED STATES DEPARTMENT OF JUSTICE,
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondents.
22       _______________________________________
23
24       FOR PETITIONER:                Dehai Zhang, Flushing, N.Y.
25
26       FOR RESPONDENTS:               Tony West, Assistant Attorney
27                                      General; Susan K. Houser, Senior
28                                      Litigation Counsel; Gary J. Newkirk,
29                                      Trial Attorney, Office of
1                           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        Bin Lin, a native and citizen of the People’s Republic

10   of China, seeks review of a May 13, 2009, order of the BIA

11   affirming the August 13, 2007, decision of Immigration Judge

12   (“IJ”) Elizabeth A. Lamb, which denied her application for

13   asylum, withholding of removal, and relief under the

14   Convention Against Torture (“CAT”).     In re Bin Lin, No. A099

15   538 811 (B.I.A. May 13, 2009), aff’g No. A099 538 811

16   (Immig. Ct. N.Y. City Aug. 13, 2007).     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 review the

20   decision of the IJ as supplemented by the BIA.     See Yan Chen

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

22   applicable standards of review are well-established.      See

23   8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,

24   534 F.3d 162, 165-66 (2d Cir. 2008) ; Manzur v. U.S. Dep’t of



                                   2
1    Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).

2    I.   Past Persecution

3         Substantial evidence supports the agency’s adverse

4    credibility determination .   Under the substantial evidence

5    standard, “[w]e defer . . . to an IJ’s credibility

6    determination unless, from the totality of the

7    circumstances, it is plain that no reasonable fact-finder

8    could make such an adverse credibility ruling.”      Xiu Xia

9    Lin, 534 F.3d at 167.   For asylum applications governed by

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

11   the circumstances, base a credibility finding on an asylum

12   applicant’s “demeanor, candor, or responsiveness,” the

13   plausibility of his or her account, and inconsistencies in

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

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

16   1158(b)(1)(B)(iii).

17        We find no error in the IJ’s determination that

18   portions of Lin’s testimony were implausible.     We will not

19   disturb such findings as long as they are “tethered to

20   record evidence, and there is nothing else in the record

21   from which a firm conviction of error could properly be

22   derived.”   See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d


                                    3
1    Cir. 2007); see also Siewe v. Gonzales, 480 F.3d 160, 169

2    (2d Cir. 2007).     The agency reasonably found implausible

3    Lin’s testimony that, despite growing up in China, receiving

4    a middle school education, and having been denied a marriage

5    license, she was not aware of the requirement that couples

6    obtain a birth permit before having a child.      This finding

7    was tethered to record evidence discussing the pervasiveness

8    of China’s population control campaign, including its

9    inclusion in the middle school curriculum.     Additionally, we

10   find no error in the IJ’s finding that Lin’s failure to

11   present any authenticated corroboration further undermined

12   the credibility of her already suspect testimony.        See Biao

13   Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An

14   applicant’s failure to corroborate his or her testimony may

15   bear on credibility, because the absence of corroboration in

16   general makes an applicant unable to rehabilitate testimony

17   that has already been called into question .”).       Therefore,

18   substantial evidence supports the agency’s finding that

19   Lin’s claim regarding her alleged forced abortion in China

20   was not credible.     See 8 U.S.C. § 1252(b)(4)(B).

21   II.   Well-Founded Fear of Persecution

22         We are also unpersuaded by Lin’s argument that she has


                                     4
1    a well-founded fear of persecution in China based on her

2    desire, readiness, and willingness to have more children

3    than the family planning policy permits.   We note that,

4    although the agency failed to consider this claim, Lin does

5    not argue that its failure to do so was error.     Even if Lin

6    had made such an argument, remand would be futile.     See Xiao

7    Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.

8    2006) (finding that the “overarching test for deeming a

9    remand futile” is whether the reviewing court can

10   “confidently predict that the IJ would reach the same

11   decision absent the errors that were made” (internal

12   quotation marks omitted)).   Indeed, because Lin is not

13   married, is not pregnant, and has no children, her claim

14   regarding her desire to one day have children is entirely

15   too speculative to be objectively reasonable.    See Jian Xing

16   Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005) (holding

17   that, absent solid support in the record for the

18   petitioner’s assertion that he would be subjected to forced

19   sterilization, his fear was “speculative at best”).

20       Finally, Lin does not challenge the agency’s denial of

21   her withholding of removal or CAT claims before this Court.

22   Even assuming that Lin’s challenge to the IJ’s adverse

23   credibility determination suffices to challenge the agency’s
                                  5
1    denial of each of her applications for relief, that

2    determination undermines each claim to the extent they were

3    based on the same factual predicate.    See Paul v. Gonzales,

4    444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v. U.S.

5    Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005).

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 34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk
16
17
18




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