         12-1843
         Lin v. Holder
                                                                                         BIA
                                                                                    Videla, IJ
                                                                                 A087 435 927
                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 3rd day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                 JON O. NEWMAN,
 8                 ROSEMARY S. POOLER,
 9                 DEBRA ANN LIVINGSTON,
10                      Circuit Judges.
11       _____________________________________
12       HEDI LIN,
13                 Petitioner,
14
15                       v.                                        12-1843
16                                                                 NAC
17       ERIC H. HOLDER, JR., UNITED STATES
18       ATTORNEY GENERAL,
19                Respondent.
20       _____________________________________
21
22       FOR PETITIONER:                Thomas V. Massucci, New York, N.Y.
23
24       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
25                                      Attorney General; Jennifer P.
26                                      Williams, Senior Litigation Counsel;
27                                      Lauren E. Fascett, Trial Attorney,
28                                      Office of Immigration Litigation,
29                                      United States Department of Justice,
30                                      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 Hedi Lin, a native and citizen of the

 6   People’s Republic of China, seeks review of a April 4, 2012,

 7   decision of the BIA affirming the April 14, 2010, decision

 8   of Immigration Judge (“IJ”) Gabriel C. Videla, which

 9   pretermitted his application for asylum and denied his

10   application for withholding of removal and relief under the

11   Convention Against Torture (“CAT”).     In re Hedi Lin, No.

12   A087 435 927 (B.I.A. Apr. 4, 2012), aff’g A087 435 927

13   (Immig. Ct. N.Y. City Apr. 14, 2010).     We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history in this case.

16       Under the circumstances of this case, we review the

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

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

19   applicable standards of review are well-established.      See

20   8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

21   562 F.3d 510, 513 (2d Cir. 2009).     Because Lin does not

22   challenge the IJ’s pretermission of his asylum application


                                  2
 1   as untimely, or the denial of CAT relief, we consider only

 2   withholding of removal.

 3       For applications such as Lin’s, governed by the REAL ID

 4   Act of 2005, the agency may, considering the totality of the

 5   circumstances, base a credibility finding on the applicant’s

 6   “demeanor, candor, or responsiveness,” the plausibility of

 7   her account, and inconsistencies in her statements, without

 8   regard to whether they go “to the heart of the applicant’s

 9   claim.”     See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);

10   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

11   We will “defer to an IJ’s credibility determination unless,

12   from the totality of the circumstances, it is plain that no

13   reasonable fact-finder could make” such a ruling.        Xiu Xia

14   Lin, 534 F.3d at 167.     Here, the IJ’s adverse credibility

15   determination is supported by substantial evidence.

16       The IJ reasonably based her credibility finding on

17   Lin’s inconsistent and implausible testimony and

18   inconsistencies between his testimony and his documentary

19   evidence.     See 8 U.S.C. §§ 1158(b)(1)(B)(iii),

20   1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167.        Indeed, the

21   record reflects that: (1) Lin’s testimony that the

22   underground church he attended was called Lianjiang County


                                     3
 1   Christian Church, had a cross featured on its doors and a

 2   sign with its name, and, because it was illegal, it operated

 3   in secret to avoid interference by authorities was both

 4   implausible and contrary to his later testimony that the

 5   church actually was government-sanctioned with a government

 6   appointed pastor; (2) Lin changed his testimony three times

 7   regarding where he was baptized, stating first that he was

 8   baptized at an unnamed meeting place in a church member’s

 9   home, then Lianjiang County Church, then Lianjiang County

10   Hospital, and finally reasserting that he was baptized in a

11   basement in a church member’s home; and (3) Lin’s testimony

12   that he was not baptized in Lianjing County Church was

13   contrary to the baptismal certificate he presented from that

14   church.

15       The IJ was not required to credit Lin’s explanations

16   for these inconsistencies.   See Majidi v. Gonzales, 430 F.3d

17   77, 80-81 (2d Cir. 2005) (providing that the agency need not

18   credit an applicant’s explanations for inconsistent

19   testimony unless those explanations would compel a

20   reasonable fact-finder to do so).   Moreover, because the

21   IJ’s assessment of Lin’s demeanor as vague and non-

22   responsive is supported by these “specific examples of


                                   4
 1   inconsistent testimony,” we defer to that finding.      Li Hua

 2   Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.

 3   2006).     Likewise, because the IJ’s implausibility finding is

 4   “tethered to the evidentiary record,” based on Lin’s

 5   description of his underground church as having visible

 6   decoration and identifying signage, we will not disturb that

 7   finding.     Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir.

 8   2007).

 9       The IJ also reasonably relied on the lack of reliable

10   corroborating evidence, particularly the absence of an

11   affidavit from his wife, who had allegedly attended church

12   with Lin in the United States.      “An applicant’s failure to

13   corroborate his or her testimony [with evidence reasonably

14   available to the applicant] may bear on credibility, because

15   the absence of corroboration in general makes an applicant

16   unable to rehabilitate testimony that has already been

17   called into question.”     Biao Yang v. Gonzales, 496 F.3d 268,

18   273 (2d Cir. 2007).     Even though Lin’s wife may have lacked

19   a lawful immigration status and feared removal if she

20   appeared in Court, that fear does not make her testimony

21   unavailable because his wife would have only benefitted from

22   her testimony because she would obtain derivative asylee

23   status if her husband was granted asylum.      See Yan Juan Chen
                                     5
 1   v. Holder, 658 F.3d 246, 253 (2d Cir. 2011).   Additionally,

 2   Lin did not explain why his wife could not have submitted an

 3   affidavit, which would not have required her to appear in

 4   Court.

 5       The IJ also reasonably afforded minimal weight to the

 6   only corroborating documentary evidence Lin submitted,

 7   because: (1) the author of one letter, Chih Pin Charles Tu,

 8   did not know Lin; (2) the letters from his fellow

 9   practitioners were from interested parties who were not

10   subject to cross-examination; and (3) the baptismal

11   certificate was not signed, Lin could not identify who had

12   completed the certificate, and the certificate stated that

13   he was baptized in Lianjiang Country Christian Church,

14   contrary to his testimony that he was baptized in a house

15   church.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

16   315, 342 (2d Cir. 2006) (noting that the weight to be

17   afforded to the applicant’s evidence in immigration

18   proceedings lies largely within the discretion of the IJ).

19       With regard to a letter from Pastor Tsung-Shih Fred

20   Hsu, the BIA noted that the IJ did not thoroughly explain

21   her bases for affording the letter minimal weight, but

22   nevertheless found no error because, based on Lin’s

23   “contradictory testimony as to whether he in fact asked
                                   6
 1   Pastor Hsu to appear as a witness on his behalf,” the letter

 2   was not entitled to full weight.

 3       Given Lin’s inconsistent testimony, adverse demeanor,

 4   and failure to corroborate his claim, the totality of the

 5   circumstances supports the agency’s adverse credibility

 6   determination.    See Xiu Xia Lin, 534 F.3d at 167; Yanqin

 7   Weng, 562 F.3d at 513.    Accordingly, the IJ did not err in

 8   denying withholding of removal.    See 8 U.S.C.

 9   §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C).

10       For the foregoing reasons, the petition for review is

11   DENIED.    As we have completed our review, Lin’s pending

12   motion for a stay of removal in this petition is DISMISSED

13   as moot.

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




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