         13-1710
         Lin v. Lynch
                                                                                        BIA
                                                                               Balasquide, IJ
                                                                               A089 468 694
                         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 24th day of June, two thousand sixteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROSEMARY S. POOLER,
 9                BARRINGTON D. PARKER,
10                     Circuit Judges.
11       _____________________________________
12
13       XIAO JIE LIN,
14                Petitioner,
15
16                      v.                                      13-1710
17                                                              NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Robert Tsigler, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; John S. Hogan, Senior
27                                     Litigation Counsel; Nicole J.
28                                     Thomas-Dorris, Trial Attorney, Civil
29                                     Division, Office of Immigration
30                                     Litigation, United States Department
31                                     of Justice, Washington D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Petitioner Xiao Jie Lin, a native and citizen of China,

 6   seeks review of an April 18, 2013, decision of the BIA

 7   affirming a December 21, 2010, decision of an Immigration

 8   Judge (“IJ”) denying Lin’s application for asylum,

 9   withholding of removal and relief under the Convention

10   Against Torture (“CAT”).     In re Xiao Jie Lin, No. A089 768

11   694 (B.I.A. Apr. 18, 2013), aff’g No. A089 768 694 (Immig.

12   Ct. N.Y.C. Dec. 21, 2010).    We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we have reviewed

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

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

18   applicable standards of review are well established.     8

19   U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

20   F.3d 510, 513 (2d Cir. 2009).

21       Lin filed his asylum application in 2009; so, the REAL

22   ID Act applies.   REAL ID Act of 2005, Div. B of Pub. L. No.


                                     2
 1   109-13, 119 Stat. 302, 303 (2005) (codified at 8 U.S.C.

 2   § 1158(b)(1)(B)(iii)).   Under that Act, the agency may, in

 3   light of “the totality of the circumstances,” base a

 4   credibility finding on an asylum applicant’s “demeanor,

 5   candor, or responsiveness,” the plausibility of his account,

 6   and inconsistencies in his statements, without regard to

 7   whether those inconsistencies go “to the heart of the

 8   applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

 9   Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).   The

10   agency need not credit an applicant’s explanations for

11   inconsistent testimony unless those explanations would

12   compel a reasonable fact-finder to do so.   See Majidi v.

13   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).   We “defer to

14   an IJ’s credibility determination unless, from the totality

15   of the circumstances, it is plain that no reasonable

16   fact-finder could make such an adverse credibility ruling.”

17   Xiu Xia Lin, 534 F.3d at 167.

18       Here, the IJ reasonably relied on the inconsistencies

19   between the testimony of Lin and his only witness, Father

20   Andrew Tai.   Their testimony conflicted on three points: how

21   often Lin attended church in China; his family’s religious

22   practices (or lack thereof); and where he was baptized for


                                     3
 1   the first time.     Lin testified that he attended church in

 2   China only three times.     Father Tai, however, testified that

 3   Lin told him he attended Catholic church services in China

 4   “frequently.”     Lin testified that his family was not

 5   religious, and submitted a letter from his father that said:

 6   “We . . . do not believe in the religion, and worried about

 7   his participation in the underground Church.”       Father Tai,

 8   however, testified that Lin told him that his family and

 9   relatives in China “go to church and attend their events.”

10   Lin testified that he was first baptized in New York.

11   Father Tai, however, testified that he asked Lin to “re-

12   study” Catholicism because Lin told him that he doubted his

13   Chinese baptism ceremony was “correct.”

14       These inconsistencies were “collateral or ancillary” to

15   Lin’s claim, which centered on his religious practice in the

16   United States, not China.     But after the REAL ID Act, “an IJ

17   may rely on any inconsistency or omission in making an

18   adverse credibility determination as long as the ‘totality

19   of the circumstances’ establishes that an asylum applicant

20   is not credible.”     Xiu Xia Lin, 534 F.3d at 167 (quoting 8

21   U.S.C. § 1158(b)(1)(B)(iii)).       The IJ was within his

22   discretion to deem the “cumulative effect” of the

23   inconsistencies to be “consequential,” and to find Father

                                     4
 1   Tai credible and Lin not credible.      Tu Lin v. Gonzales, 446

 2   F.3d 395, 402 (2d Cir. 2006).

 3          The IJ did not prevent Lin from explaining the

 4   inconsistencies between his own testimony and that of Father

 5   Tai.    “[A]n IJ may not rest an adverse credibility finding

 6   on non-dramatic putative contradictions or incongruities in

 7   an alien’s narrative without first giving the applicant a

 8   chance to reconcile the testimony.”      Ming Shi Xue v. BIA,

 9   439 F.3d 111, 125 (2d Cir. 2006).      The contradictions

10   between Lin and Father Tai were dramatic.      After Father Tai

11   left the courtroom, Lin’s attorney voiced concern “that

12   Father Tai’s testimony has now called into question my

13   client’s credibility” and explained that she called the

14   priest only to testify to Lin’s “U.S. attendance in church,

15   not to test his past history.”      The IJ responded that Father

16   Tai’s testimony “impeached [Lin’s] testimony in regards to

17   his family members and that’s . . . part of the record and I

18   cannot ignore that.”    Lin’s attorney considered calling

19   additional witnesses, but decided against it.      In her

20   closing argument counsel did not explain the

21   inconsistencies, but implored the IJ to focus on Lin’s

22   testimony and corroborating documents.      On this record, the

23   IJ did not run afoul of the Ming Shi Xue rule.

                                     5
 1       Having reasonably found that Lin failed to establish

 2   eligibility for asylum on credibility grounds, the agency

 3   did not err in denying withholding of removal and relief

 4   under the CAT, because these claims shared the same factual

 5   predicate.   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

 6   Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

 7   520, 523 (2d Cir. 2005).

 8       For the foregoing reasons, the petition for review is

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

10   removal that the Court previously granted in this petition

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

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

13   oral argument in this petition is DENIED in accordance with

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

15   Circuit Local Rule 34.1(b).

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




                                    6
