         11-2066-ag
         Lin v. Holder
                                                                                         BIA
                                                                                  Schoppert, IJ
                                                                                 A088 783 084
                                                                                 A088 783 085
                              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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of New
 4       York, on the 27th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROBERT A. KATZMANN,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _________________________________________
12
13       ZHUANG YING LIN, JI BO QIU,
14                Petitioners,
15
16                       v.                                       11-2066-ag
17                                                                NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:               H. Raymond Fasano, Youman, Madeo &
24                                     Fasano, LLP; New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney General;
27                                     Emily Anne Radford, Assistant Director;
28                                     Victor M. Mercado-Santana, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, United States Department of
31                                     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       Petitioners Zhuang Ying Lin and Ji Bo Qiu, natives and

 6   citizens of the People’s Republic of China, seek review of an

 7   April 21, 2011, decision of the BIA affirming the May 6, 2009,

 8   decision of Immigration Judge (“IJ”) Douglas Schoppert denying

 9   Lin’s application for asylum, withholding of removal and

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

11   Zhuang Ying Lin, Ji Bo Qiu, Nos. A088 783 084/085 (B.I.A. Apr.

12   21, 2011), aff’g Nos. A088 783 084/085 (Immig. Ct. N.Y. City

13   May 6, 2009).   We assume the parties’ familiarity with the

14   underlying facts and procedural history of the case.

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and the BIA’s opinions.    See Jigme Wangchuck v.

17   DHS, 448 F.3d 524, 528 (2d Cir. 2006).   The applicable

18   standards of review are well-established.    See 8 U.S.C.

19   § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

20   162, 165-66 (2d Cir. 2008).

21       For asylum applications, like Lin’s governed by the REAL

22   ID Act, the agency may, considering the totality of the


                                    2
 1   circumstances, base a credibility finding on an asylum

 2   applicant’s demeanor, the plausibility of her account, and

 3   inconsistencies in her or her witness’s statements, without

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

 5   claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d

 6   at 163-64.

 7       Substantial evidence supports the agency’s determination

 8   that Lin did not testify credibly.     The IJ reasonably relied

 9   on inconsistencies in the record.    See 8 U.S.C.

10   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-

11   64, 166-67.   As the IJ noted, Lin’s testimony regarding the

12   cadres’ attempt to arrest her in March 2007 was inconsistent

13   with the letter from her father regarding whether anyone was

14   home at the time the cadres arrived.     This inconsistency

15   provides substantial support for the agency’s adverse

16   credibility determination.   See 8 U.S.C. § 1158(b)(1)(B)(iii)

17   (providing that the agency may base a credibility

18   determination on inconsistencies between the applicants oral

19   statements, and “the consistency of such statements with other

20   evidence of record”).

21       Petitioners argue that Lin’s testimony can be interpreted

22   as consistent with the letter, and the IJ erred in


                                    3
 1   interpreting it otherwise.    This “ex post justification,”

 2   however, is not a sufficient basis to overturn the agency’s

 3   adverse credibility determination, as it does not compel the

 4   conclusion that a reasonable fact finder would credit Lin’s

 5   testimony.    Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.

 6   2003) (observing that a petitioner must offer more than a

 7   “plausible alternative theory” to warrant reversal); see also

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

 9   that an agency need not credit an applicant’s explanations

10   unless those explanations would compel a reasonable fact-

11   finder to do so).    This is particularly true in this case

12   because, when confronted with the apparent inconsistency

13   between her testimony and her father’s letter, Lin stated that

14   she could not explain it.

15          The IJ’s adverse credibility determination is further

16   supported by his demeanor finding. Although Petitioners argue

17   that the IJ’s observation of Lin’s demeanor is not supported

18   by the record, we give particular deference to the trier of

19   fact’s assessment of demeanor.       See Majidi, 430 F.3d at 81,

20   n.1.    In finding Lin not credible, the IJ reasonably relied in

21   part on her demeanor, noting that Lin’s responses to questions

22   were “almost always extremely brief and conclusory” and lacked


                                      4
 1   detail.   Because the IJ was in the best position to observe

 2   Lin’s manner while testifying, we afford this finding

 3   particular deference.   See Zhou Yun Zhang v. INS, 386 F.3d 66,

 4   73-74 (2d Cir. 2004), overruled on other grounds by Shi Liang

 5   Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).

 6   Given the inconsistency in the record and Lin’s failure to

 7   explain it, and in light of our deference to the agency’s

 8   findings regarding demeanor, the adverse credibility

 9   determination is supported by substantial evidence.     See 8

10   U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at

11   167 (explaining that this Court “defer[s] to an IJ’s

12   credibility 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”).   Accordingly,

15   the agency did not err in denying asylum and withholding of

16   removal as those claims were based on the same factual

17   predicate.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

18   2006).

19       For the foregoing reasons, the petition for review is

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

21   that the Court previously granted in this petition is VACATED,

22   and any pending motion for a stay of removal in this petition


                                    5
1   is DISMISSED as moot. Any pending request for oral argument in

2   this petition is DENIED in accordance with Federal Rule of

3   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

4   34.1(b).

5                              FOR THE COURT:
6                              Catherine O’Hagan Wolfe, Clerk
7
8




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