         12-96
         Lin v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A087 443 580
                           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 16th day of May, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                DEBRA ANN LIVINGSTON,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       JIN LIN,
14                       Petitioner,
15
16                       v.                                     12-96
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Gerald Karikari, New York, New York.
24
25       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
26                                      Attorney General; Blair T. O’Connor,
27                                      Assistant Director; John B. Holt,
28                                      Trial Attorney, Office of
29                                      Immigration Litigation, United
30                                      States Department of Justice,
31                                      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 GRANTED in part and DENIED in part.

 5       Jin Lin, a native and citizen of China, seeks review of

 6   a December 14, 2011 order of the BIA affirming the June 23,

 7   2010 decision of an Immigration Judge (“IJ”) denying his

 8   application for asylum, withholding of removal, and relief

 9   under the Convention Against Torture (“CAT”).   In re Jin

10   Lin, No. A087 443 580 (B.I.A. Dec. 14, 2011), aff’g No. A087

11   443 580 (Immig. Ct. N.Y. City June 23, 2010).   We assume the

12   parties’ familiarity with the underlying facts and

13   procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   the IJ’s decision as modified by the BIA’s decision.    See

16   Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

17   (2d Cir. 2005).   The applicable standards of review are well

18   established.   See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

19   Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).    Because

20   the BIA assumed that Lin’s application was timely, we do not

21   reach the IJ’s finding as to the applicability of the filing

22   deadline in 8 U.S.C. § 1158(a)(2)(B).

23

                                   2
 1       For applications such as Lin’s, governed by the

 2   amendments made to the Immigration and Nationality Act by

 3   the REAL ID Act of 2005, the agency may, considering the

 4   totality of the circumstances, base a credibility finding on

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

 6   plausibility of his account, and inconsistencies in his

 7   statements, without regard to whether they go “to the heart

 8   of the applicant’s claim.”   See 8 U.S.C.

 9   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

10   167 (2d Cir. 2008).

11       Although we “defer . . . to an IJ’s credibility

12   determination unless, from the totality of the

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

14   could make such an adverse credibility ruling,” Xiu Xia Lin,

15   534 F.3d at 167, the IJ’s adverse credibility determination

16   here is not supported by substantial evidence, as it is

17   based on mischaracterizations of the record, see Tian-Yong

18   Chen v. INS, 359 F.3d 121, 129 (2d Cir. 2004).

19       The IJ based his credibility finding solely on two

20   purported inconsistencies in Lin’s testimony:

21   (1) inconsistent testimony regarding the “diagnosis” of a

22   childhood injury that Lin sustained, which partially


                                   3
 1   motivated him to take up the practice of Falun Gong; and

 2   (2) Lin’s testimony that he had seen a doctor after being

 3   beaten in police custody, followed by his testimony that he

 4   had not seen a doctor and had merely purchased medicine to

 5   treat his own wounds.    First, the precise diagnosis or

 6   nature of Lin’s childhood injury was never raised during his

 7   testimony, as neither party nor the IJ asked Lin about this

 8   topic, and thus, the IJ’s finding that Lin testified

 9   inconsistently about his injury is without support in the

10   record.   Such a finding is the result of flawed fact-finding

11   and does not “bear a legitimate nexus to the [IJ’s

12   credibility] finding.”    Xiu Xia Lin, 534 F.3d at 166; see

13   Singh v. Mukasey, 553 F.3d 207, 213 (2d Cir. 2009).

14       Furthermore, as to the purported inconsistency in Lin’s

15   testimony regarding whether he saw a doctor upon his release

16   from police custody, the complete record supports Lin’s

17   contention that he was briefly confused about the

18   government’s question, and immediately clarified his

19   testimony when the confusion was resolved.    While Lin did at

20   one point state that he saw a doctor upon release from

21   detention, the context of Lin’s entire direct and cross

22   examination, which is marked by other moments of


                                    4
 1   miscommunication between Lin and the government, suggests

 2   that Lin could have been referring to his visits to a doctor

 3   years before for his childhood injury.   Upon clarifying

 4   questions from the government, Lin explained this reference

 5   and testified, consistently with previous and later

 6   testimony, that after his release from detention he

 7   purchased ointment with which he treated his own wounds.

 8   See Tian-Yong Chen, 359 F.3d at 129; Dong Gao v. BIA, 482

 9   F.3d 122, 128-34 (2d Cir. 2007) (purported inconsistencies

10   which actually resulted from confusion during questioning,

11   and which were followed by consistent testimony, were

12   improper basis for adverse credibility determination).

13       Given the ambiguity in the record on this point, Lin’s

14   purported inconsistency regarding seeing a doctor upon

15   release from custody, standing alone, does not constitute

16   substantial evidence to support the IJ’s adverse credibility

17   determination.   But the IJ’s credibility determination

18   relied on this purported inconsistency, in conjunction

19   solely with the inconsistency finding regarding Lin’s

20   childhood injury—San inconsistency finding clearly not

21   supported by the record.   In such circumstances, we must

22   conclude that there is a realistic possibility that, absent

23   the IJ’s errors, the IJ or BIA might have reached a
                                   5
 1   different conclusion.     See Cao He Lin v. U.S. Dep’t of

 2   Justice, 428 F.3d 391, 401 (2d Cir. 2005).      We therefore

 3   remand for further proceedings regarding Lin’s eligibility

 4   for asylum or withholding of removal under 8 U.S.C.

 5   § 1231(b)(3).

 6       If upon remand Lin is found to be credible as to his

 7   practice of Falun Gong in China or the United States, the

 8   agency should address his claim that there is a “pattern or

 9   practice” of persecution of Falun Gong practitioners in

10   China, to the extent that reaching this claim is necessary

11   to resolve his eligibility for asylum or withholding of

12   removal.   See 8 C.F.R. § 1208.13(b)(2)(iii).     Finally,

13   because Lin fails to argue sufficiently that he is entitled

14   to protection under the CAT, his petition is denied as to

15   CAT relief.     See Yueqing Zhang v. Gonzales, 426 F.3d 540,

16   545 n.7 (2d Cir. 2005).

17       For the foregoing reasons, the petition for review is

18   GRANTED in part and DENIED in part, and the case REMANDED

19   for further proceedings consistent with this order.      As we

20   have completed our review, the pending motion for a stay of

21   removal in this petition is DISMISSED as moot.      Any pending

22   request for oral argument in this petition is DENIED in

                                     6
1   accordance with Federal Rule of Appellate Procedure

2   34(a)(2), and Second Circuit Local Rule 34.1(b).

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk




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