         13-3060
         Lin v. Lynch
                                                                                        BIA
                                                                                   Sichel, IJ
                                                                               A098 971 357
                             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 12th day of May, two thousand fifteen.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                ROSEMARY S. POOLER,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       LI CHUN LIN,
14                Petitioner,
15
16                          v.                                  13-3060
17                                                              NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.*
21       _____________________________________
22
23
24       FOR PETITIONER:               Corey T. Lee, Law Offices of Corey
25                                     T. Lee, PLLC, New York, NY.
26


                        *
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Loretta E. Lynch is automatically
             substituted for former Attorney General Eric H. Holder, Jr.
 1   FOR RESPONDENT:         Stuart F. Delery, Assistant Attorney
 2                           General; Leslie McKay, Assistant
 3                           Director; Sara Bergene, Trial
 4                           Attorney, Office of Immigration
 5                           Litigation, United States Department
 6                           of Justice, Washington, D.C.
 7
 8       UPON DUE CONSIDERATION of this petition for review of a

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

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

11   is DENIED.

12       Petitioner Li Chun Lin, a native and citizen of China,

13   seeks review of a July 24, 2013, order of the BIA, affirming

14   the January 12, 2012, decision of an Immigration Judge

15   (“IJ”), which denied asylum, withholding of removal, and

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

17   Li Chun Lin, No. A098 971 357 (B.I.A. July 24, 2013), aff’g

18   No. A098 971 357 (Immig. Ct. New York City January 12,

19   2012).   We assume the parties’ familiarity with the

20   underlying facts and procedural history in this case.

21       Under the circumstances, we have considered both the

22   IJ’s and the BIA’s opinions “for the sake of completeness.”

23   Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008).     The

24   applicable standards of review are well established.     See 8

25   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

26   513 (2d Cir. 2009).


                                   2
 1       Because Lin filed his asylum application in April 2005,

 2   the REAL ID Act does not apply. See REAL ID Act of 2005,

 3   Div. B of Pub. L. No. 109- 13, 119 Stat. 302, 303 (2005)

 4   (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)); Matter of S-B-,

 5   24 I. & N. Dec. 42, 45 (BIA 2006).     In pre-REAL ID Act

 6   cases, an adverse credibility determination must be based on

 7   “specific, cogent reasons” that “bear a legitimate nexus” to

 8   the finding, and any discrepancy must be “substantial” when

 9   measured against the record as a whole.     See Secaida-

10   Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003), superseded

11   by the REAL ID Act as recognized in Xiu Xia Lin v. Mukasey,

12   534 F.3d 162, 163-64 (2d Cir. 2008).

13       Substantial evidence supports the agency’s adverse

14   credibility determination.   Lin omitted from his asylum

15   application and supplementary statement his claim that he

16   was beaten and denied sufficient food and medical care while

17   detained for two days at a family planning office.     This

18   information was also omitted from his wife's statement.

19   Minor and isolated discrepancies may be insufficient to

20   support an adverse credibility finding.     See Diallo v. INS,

21   232 F.3d 279, 285-86 (2d Cir. 2000); see also Xiu Xia Lin,

22   534 F.3d at 166-67 n.3 (noting that inconsistencies and


                                   3
 1   omissions are “functionally equivalent”).    As Lin’s claim

 2   was predicated on his alleged mistreatment by family

 3   planning officials, both the incident, and Lin's omission of

 4   it, went to the heart of his asylum claim.    See Beskovic v.

 5   Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006) (noting that

 6   the Court had previously held that two brief detentions

 7   without physical mistreatment did not constitute

 8   persecution).   Accordingly, a “legitimate nexus” existed

 9   between his claim and the omission.   See Secaida-Rosales v.

10   INS, 331 F.3d at 307-08.

11       Lin’s argument that his omission of the incident was

12   not material because the case law at the time he filed his

13   asylum application allowed him to establish past persecution

14   based on his wife's forced abortion alone is unavailing.

15   See Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997) (finding

16   applicants eligible for asylum based on a spouse’s

17   sterilization); Shi Liang Lin v. U.S. Dep’t of Justice, 494

18   F.3d 296, 308 (2d Cir. 2007) (explicitly rejecting Matter of

19   C-Y-Z- and concluding, inter alia, that “applicants can

20   become candidates for asylum relief only based on

21   persecution that they themselves have suffered or must

22   suffer”).   As the agency noted, Lin would reasonably have


                                   4
 1   been expected to include the alleged beating, insufficient

 2   food, and denial of medical care in his claim because they

 3   were not “ancillary or tangential.”    See Ye v. DHS, 446 F.3d

 4   289, 294-95 (2d Cir. 2006) (finding omission material and

 5   affirming adverse credibility finding where asylum applicant

 6   testified that he was beaten during detention by family

 7   planning officials, but had not included such facts in

 8   application).

 9       Further, the agency was not required to accept Lin’s

10   explanations for his omission.    Lin has offered various

11   explanations for the omission: his attorney failed to

12   include it; the controlling law at the time he filed his

13   application rendered the incident “immaterial”; he did not

14   realize that the incident was not in his application because

15   he “did not pay attention” while it was being read back to

16   him; he was nervous in his asylum application interview; and

17   the asylum officer never asked him about it.     However, we

18   generally will not disturb adverse credibility

19   determinations that are based on “specific examples in the

20   record of inconsistent statements . . . about matters

21   material to [an applicant’s] claim of persecution, or on

22   contradictory evidence or inherently improbable testimony

23   regarding such matters.”   Zhou Yun Zhang v. INS, 386 F.3d
                                   5
 1   66, 74 (2d Cir. 2004) (internal quotation marks omitted),

 2   overruled in part on other grounds by Shi Liang Lin, 494

 3   F.3d at 305.   Further, an IJ need not credit an applicant’s

 4   explanations for inconsistent testimony unless those

 5   explanations would compel a reasonable fact-finder to do so.

 6   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

 7   Because a petitioner is required to offer more than a

 8   “plausible explanation,” the IJ was not required to credit

 9   Lin’s explanations.   See id. at 80.

10       Here, the “adverse credibility finding was based, inter

11   alia, on a specific example of [inconsistent] evidence that

12   undermined the very ‘crux’ of [Lin’s] asylum application.”

13   See Zhou Yi Ni v. U.S. Dep’t of Justice, 424 F.3d 172, 174

14   (2d Cir. 2005).   Lin’s omission of a material aspect of his

15   asylum claim “is, standing alone, significant enough to

16   support an adverse credibility finding.”   See id.   Because

17   the only evidence of a threat to Lin’s life or freedom

18   depended upon his credibility, the adverse credibility

19   determination in this case necessarily precludes success on

20   his claims for asylum, withholding of removal, and CAT

21   relief.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

22   2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

23   523 (2d Cir. 2005).   Because the adverse credibility
                                   6
 1   determination is dispositive, we need not consider the other

 2   arguments Lin raises.

 3       For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted in this petition

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

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

 8   oral argument in this petition is DENIED in accordance with

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

10   Circuit Local Rule 34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk
13
14




                                    7
