     16-1
     Jin v. Sessions
                                                                                       BIA
                                                                                Schoppert, IJ
                                                                               A200 168 536

                            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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   17th day of July, two thousand seventeen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            JOSÉ A. CABRANES,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   GUIYU JIN, AKA GUIOK KIM,
14            Petitioner,
15
16                     v.                                            16-1
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Wei Gu, Whitestone, NY.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Keith I.
27                                       McManus, Assistant Director; Scott
28                                       M. Marconda, Trial Attorney, Office
29                                       of Immigration Litigation, United
30                                       States Department of Justice,
31                                       Washington, DC.
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 is

4    DENIED.

5          Petitioner Guiyu Jin, an alleged native of the People’s

6    Republic of China and citizen of South Korea, seeks review of

7    a December 4, 2015, decision of the BIA, affirming a June 18,

8    2014, decision of an Immigration Judge (“IJ”) denying Jin’s

9    application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”), and concluding

11   that she knowingly made a frivolous application for asylum.         In

12   re Guiyu Jin, No. A200 168 536 (B.I.A. Dec. 4, 2015), aff’g No.

13   A200 168 536 (Immig. Ct. N.Y. City June 18, 2014).         We assume

14   the   parties’    familiarity   with   the   underlying    facts    and

15   procedural history in this case.

16         Under the circumstances of this case, we have reviewed both

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

18   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

19   2006).      The   applicable    standards    of   review   are     well

20   established.      See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

21   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

22

23

                                       2
1         I.     Adverse Credibility Determination

2              Because a frivolousness finding is only “effective as of

3    the date of a final determination,” 8 U.S.C. § 1158(d)(6), we

4    first consider the denial of relief on the merits.                  For asylum

5    applications like Jin’s, governed by the REAL ID Act, the agency

6    may, “[c]onsidering the totality of the circumstances,” base

7    a credibility finding on “the inherent plausibility of the

8    applicant’s” account and on inconsistencies in her statements

9    and evidence, “without regard to whether” those inconsistencies

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

11   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.                      “We

12   defer . . . to an IJ’s credibility determination unless, from

13   the totality of the circumstances, it is plain that no

14   reasonable fact-finder could make such an adverse credibility

15   ruling.”         Xiu Xia Lin, 534 F.3d at 167.          Substantial evidence

16   supports the adverse credibility determination.

17             The agency reasonably relied on inconsistencies between

18   Jin’s testimony and the Government’s evidence concerning Jin’s

19   date       of    entry    to    the   United      States.     See   8    U.S.C.

20   § 1158(b)(1)(B)(iii).                 Jin       maintained   throughout    her

21   testimony, and wrote in each application, that she entered the

22   United States in August 2010, through the Mexico-California

23   border and that she never entered before that date.                        The

                                                 3
1    Government’s records, however, reflect that an individual named

2    “Guiok Kim,” whose birthdate and fingerprints matched Jin’s,

3    had twice previously gained entry to the United States in

4    November 2006 and November 2007 using a South Korean passport

5    and a visa obtained in South Korea.        There was no record of Guiok

6    Kim departing the United States after the 2007 entry.               When

7    confronted    with   this   evidence,      Jin    did   not   proffer   an

8    explanation.    Instead, she maintained that her first and only

9    entry occurred in August 2010.      The agency reasonably concluded

10   that this discrepancy “cast serious doubt” on Jin’s entire

11   claim, particularly as her 2013 asylum application listed Guiok

12   Kim as a name she had used previously.       This inconsistency, even

13   standing alone, supports the adverse credibility determination

14   because it calls into question Jin’s identity and completely

15   undermines her claim that she was arrested in China in 2010 given

16   the Government’s evidence placing her in the United States at

17   that time.    Cf. Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d

18   289, 295 (2d Cir. 2006) (“[A] material inconsistency in an

19   aspect of [an applicant’s] story that served as an example of

20   the very persecution from which he sought asylum . . . afforded

21   substantial    evidence     to   support    the   adverse     credibility

22   finding.”).



                                         4
1        Nor does Jin attempt to explain this discrepancy in her

2    brief.      Instead, she faults the agency for crediting the

3    Government’s evidence over hers, which consisted of letters

4    from family in China, a Public Security Penalty Decision dated

5    May 2010 issued to Jin for renting a room to North Korean

6    refugees, and a medical record for her hospitalization in China

7    following the alleged May 2010 beating.           Jin’s argument is

8    unavailing.      “Decisions   as       to . . . which   of   competing

9    inferences to draw are entirely within the province of the trier

10   of fact.”    Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007)

11   (quoting Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 44 (2d

12   Cir. 2000)); see also Xiao Ji Chen v. U.S. Dep’t of Justice,

13   471 F.3d 315, 342 (2d Cir. 2006) (observing that this Court

14   generally defers to the agency’s evaluation of documentary

15   evidence).     Accordingly, because the agency’s finding is

16   “tethered to the evidentiary record,” we accord it deference.

17   Siewe, 480 F.3d at 168-69.

18       The agency also reasonably found parts of Jin’s testimony

19   concerning how she came to procure a massage license in Florida

20   to be implausible.     “[I]n assessing the credibility of an

21   asylum applicant’s testimony, an IJ is entitled to consider

22   whether the applicant’s story is inherently implausible.”

23   Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007); see

                                        5
1    also 8 U.S.C. § 1158(b)(1)(B)(iii).      Such a finding cannot be

2    based on “bald speculation or caprice.”        Zhou Yun Zhang v. U.S.

3    INS, 386 F.3d 66, 74 (2d Cir. 2004), overruled on other grounds

4    by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.

5    2007).     But one that is based on “speculation that inheres in

6    inference is not ‘bald’ if the inference is made available to

7    the factfinder by record facts, or even a single fact, viewed

8    in the light of common sense and ordinary experience.”          Siewe,

9    480 F.3d at 168-69.    Common sense supports the IJ’s inference:

10   it strains credulity that Jin, who testified that she could not

11   read or write in English, was able to obtain a massage license

12   in Florida by attending a three-month class conducted in English

13   merely by using a dictionary, particularly given her testimony

14   that her lack of English prevented her from recalling the name

15   of the school.

16        Given the inconsistencies regarding identity and location

17   at the time of the alleged persecution, and the implausibility

18   of Jin’s claim to be a licensed masseuse, it cannot be said “that

19   no   reasonable   fact-finder   could   make    such    a   credibility

20   ruling.”     Xiu Xia Lin, 534 F.3d at 167.             Because asylum,

21   withholding of removal, and CAT relief were all based on the

22   same factual predicate, the adverse credibility determination



                                      6
1    is dispositive.        Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

2    2006).

3         II. Frivolousness Finding

4           “A person who makes an application for asylum determined

5    to be ‘frivolous,’ or deliberately and materially false, is

6    subject to a grave penalty: permanent ineligibility for most

7    forms of relief under the immigration laws.”             Mei Juan Zheng

8    v. Mukasey, 514 F.3d 176, 178 (2d Cir. 2008); see 8 U.S.C.

9    § 1158(d)(6).

10          We find no basis to disturb the agency’s conclusion that

11   Jin knowingly submitted a frivolous application.             The agency

12   employed all four procedural safeguards: Jin had notice of the

13   consequences of filing a frivolous application because there

14   was a written warning immediately above her signature on her

15   application, see Gade Niang v. Holder, 762 F.3d 251, 254 (2d

16   Cir. 2014); the agency rendered an explicit finding that Jin

17   knowingly filed a frivolous application; the agency’s finding

18   is    supported   by    the   record,    which,   as   discussed   above,

19   establishes that Jin entered the United States in 2006 and 2007,

20   before the date stated in her application, and the lack of

21   departure information supports a conclusion that she was in the

22   United States at the time of the alleged persecution in China;

23   and Jin was given an opportunity to account for the discrepancy,

                                          7
1   but instead chose to deny that she previously entered the United

2   States under a different name.       See In re Y-L-, 24 I. & N. Dec.

3   151, 155 (B.I.A. 2007) (discussing 8 C.F.R. § 1208.20).

4       For the foregoing reasons, the petition for review is

5   DENIED.

6                                FOR THE COURT:
7                                Catherine O’Hagan Wolfe, Clerk




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