         13-3888
         Lin v. Holder
                                                                                       BIA
                                                                                  Wright, IJ
                                                                               A200 828 750
                              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 November, two thousand fourteen.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                     Circuit Judges.
11       _____________________________________
12
13       YONG LIN, AKA LIN YONG,
14                Petitioner,
15
16                       v.                                     13-3888
17                                                              NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Gary J. Yerman, New York, New York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Cindy Ferrier, Assistant
28                                     Director; Kimberly A. Burdge, Trial
29                                     Attorney, Office of Immigration
 1                          Litigation, United States Department
 2                          of Justice, Washington D.C.
 3
 4       UPON DUE CONSIDERATION of this petition for review of a

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

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

 7   is DENIED.

 8       Petitioner Yong Lin, a native and citizen of the

 9   People’s Republic of China, seeks review of a September 23,

10   2013, decision of the BIA, affirming the April 25, 2012,

11   decision of an Immigration Judge (“IJ”), denying his

12   application for asylum, withholding of removal, and relief

13   under the Convention Against Torture (“CAT”).     In re Yong

14   Lin, No. A200 828 750 (B.I.A. Sep. 23, 2013), aff’g No. A200

15   828 750 (Immig. Ct. N.Y. City Apr. 25, 2012).    We assume the

16   parties’ familiarity with the underlying facts and

17   procedural history in this case.

18       Under the circumstances of this case, we have reviewed

19   both the BIA’s and IJ’s opinions.     See Zaman v. Mukasey, 514

20   F.3d 233, 237 (2d Cir. 2008)(per curiam).    The applicable

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

22   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

23   66 (2d Cir. 2008)(per curiam).     For asylum applications

24   governed by the REAL ID Act, the agency may, “[c]onsidering

                                  2
 1   the totality of the circumstances,” base a credibility

 2   finding on inconsistencies in the asylum applicant’s

 3   statements and other record evidence “without regard to

 4   whether” they go “to the heart of the applicant’s claim.”

 5   8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-

 6   64.     Here, substantial evidence supports the agency’s

 7   determination that Lin was not credible.

 8          There were serious inconsistences in Lin’s various

 9   statements.     At his hearing before the IJ, he claimed he was

10   arrested and beaten by Chinese officials for supporting

11   Falun Gong, but he failed to mention this arrest in his

12   credible fear interview.     Xiu Xia Lin, 534 F.3d at 166-67 &

13   n.3.     Lin also testified that he deliberately distributed

14   flyers in support of Falun Gong; however, during his

15   credible fear interview, he told the asylum officer that he

16   was unaware of the nature of the flyers when he distributed

17   them.     The IJ reasonably relied on these inconsistences in

18   finding Lin not credible.     See Zhou Yun Zhang v. I.N.S., 386

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

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

21   Cir. 2007); Xui Xia Lin, 534 F.3d at 167.

22



                                     3
 1       The IJ also reasonably rejected Lin’s various

 2   explanations. While Lin’s asylum application was detailed

 3   and coherent, his hearing testimony was not.    His

 4   application stated that the smuggler who helped him enter

 5   the United States told him to omit his 2008 arrest when

 6   speaking with U.S. officials; in his testimony, however, he

 7   admitted that the smuggler told him to tell U.S. officials

 8   the story of his arrest.    Moreover, the fact that Lin’s

 9   friend told him to tell Chinese authorities that he knew

10   nothing about the Falung Gong flyers he distributed does not

11   explain why Lin would tell U.S. authorities the same story

12   if it was not true and he was attempting to obtain asylum.

13   Finally, Lin’s insistence that he could not understand the

14   interpreter at his credible fear interview is implausible

15   because his asylum application provided a detailed

16   explanation for any inconsistencies without ever mentioning

17   such difficulty.    Accordingly, the agency did not err in

18   declining to credit Lin’s explanations.     See Majidi v.

19   Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).

20       Lin also challenges the reliability of the credible

21   fear interview.    Contrary to Lin’s argument, we do not

22   preclude reliance on these interviews; instead, we merely


                                    4
 1   require the agency to “closely examine each . . . interview

 2   before concluding that it represents a sufficiently accurate

 3   record of the alien’s statements . . . in determining

 4   whether the alien is credible.”     Ramsameachire v. Ashcroft,

 5   357 F.3d 169, 179 (2d Cir. 2004);     Ming Zhang v. Holder, 585

 6   F.3d 715, 725 (2d Cir 2009).   Here, Lin’s credible fear

 7   interview was conducted nearly a month after his arrival

 8   with the assistance of an interpreter.      He was also

 9   represented by counsel, but waived his presence at the

10   interview.   Finally, the interview was memorialized in a

11   typewritten document providing the questions the asylum

12   officer asked   and the answers Lin gave.     Id. Because the

13   interview bears indicia of reliability, the IJ did not err

14   in relying on Lin’s statements at that interview when making

15   the adverse credibility determination.

16       Finally, the IJ reasonably found Lin’s friends’ and

17   relatives’ letters entitled to little weight because the

18   authors were interested witnesses not subject to

19   cross-examination.   See Xiao Ji Chen v. U.S. Dep’t of

20   Justice, 471 F.3d 315, 342 (2d Cir. 2006).      Lin argues that

21   the agency impermissibly conflated credibility and burden of

22   proof issues in considering his corroborating evidence.


                                    5
 1   This is incorrect.   The agency merely found that, in light

 2   of Lin’s incredible testimony, his corroborating evidence

 3   was insufficient, standing alone, to carry his burden of

 4   proof.    See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

 5   Cir. 2007)(per curiam).   In any event, the agency’s

 6   inconsistency finding alone provides substantial evidence to

 7   support its adverse credibility determination.    See Xiu Xia

 8   Lin, 534 F.3d at 163-64, 166 & n 3.

 9       Accordingly, because all of Lin’s claims rely on his

10   credibility, the agency did not err in denying asylum,

11   withholding of removal, and CAT relief because those claims

12   were all based on the same factual predicate.    Paul v.

13   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

14       For the foregoing reasons, the petition for review is

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

16   removal that the Court previously granted in this petition

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

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

19   oral argument in this petition is DENIED in accordance with

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

21   Circuit Local Rule 34.1(b).

22                                 FOR THE COURT:
23                                 Catherine O’Hagan Wolfe, Clerk
24
25



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