     14-2288
     Jin v. Lynch
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A088 530 621
                         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   2nd day of February, two thousand sixteen.
 5
 6   PRESENT:
 7            ROBERT A. KATZMANN,
 8                 Chief Judge,
 9            SUSAN L. CARNEY,
10            CHRISTOPHER F. DRONEY,
11                 Circuit Judges.
12   _____________________________________
13
14   HUA JIN,
15                  Petitioner,
16
17                  v.                                         14-2288
18                                                             NAC
19
20   LORETTA E. LYNCH, UNITED STATES
21   ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                 Jim Li, Flushing, NY.
26
27   FOR RESPONDENT:                 Benjamin C. Mizer, Acting Assistant
28                                   Attorney General; Melissa
29                                   Neiman-Kelting, Senior Litigation
1                             Counsel; Jessica A. Dawgert, Trial
2                             Attorney, Office of Immigration
3                             Litigation, United States Department
4                             of Justice, Washington, D.C.
5
6        UPON DUE CONSIDERATION of this petition for review of a

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

 8   ORDERED, ADJUDGED, AND DECREED that the petition for review is

 9   DENIED.

10       Hua Jin, a native and citizen of the People’s Republic of

11   China, seeks review of a June 2, 2014, decision of the BIA

12   affirming the September 19, 2012, decision of an Immigration

13   Judge (“IJ”), denying her application for asylum, withholding

14   of removal, and relief pursuant to the Convention Against

15   Torture (“CAT”).    In re Hua Jin, No. A088 530 621 (B.I.A. June

16   2, 2014), aff’g No. A088 530 621 (Immig. Ct. N.Y. City Sep. 19,

17   2012).    We assume the parties’ familiarity with the underlying

18   facts and procedural history in this case.

19       Under the circumstances of this case, we have reviewed the

20   IJ’s decision as modified by the BIA.   See Xue Hong Yang v. U.S.

21   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).          The

22   applicable standards of review are well established.       See 8

23   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

24   513 (2d Cir. 2009).
                                     2
1          For asylum applications like Jin’s, governed by the REAL

2    ID Act of 2005, the agency may, “[c]onsidering the totality of

3    the    circumstances,”        base     a   credibility   determination    on

4    inconsistencies in an asylum applicant’s statements and other

5    record evidence “without regard to whether” the inconsistencies

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

7    § 1158(b)(1)(B)(iii).            “We defer . . . to an IJ’s credibility

8    determination unless, from the totality of the circumstances,

9    it is plain that no reasonable fact-finder could make such” a

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

11   (per curiam).         Substantial evidence supports the agency’s

12   adverse credibility determination.

13         The agency relied on multiple inconsistencies in finding

14   Jin not credible.          For example, the agency reasonably relied

15   on an inconsistency regarding when Jin was arrested in China:

16   on June 8, 2005, or June 8, 2006.              The agency was not required

17   to credit her explanation that she was nervous.              See Majidi v.

18   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (holding that the

19   agency      need   not     credit    an    applicant’s   explanations    for

20   inconsistent testimony unless those explanations would compel

21   a reasonable fact-finder to do so).


                                                3
1        The agency also reasonably relied on an inconsistency

2    regarding Jin’s reporting to police following her arrest.

3    Jin’s testimony that she reported to the police only twice

4    during the relevant time period, conflicted with her testimony

5    that she was forced to report about “once every other month”

6    between her 2005 arrest and her August 2006 departure from

7    China.

8        Jin also testified inconsistently regarding where she had

9    lived in the United States.    She testified that she only lived

10   in New York between 2008 and 2011, but her documentary evidence

11   showed that she had also lived in Illinois during that time

12   period.   The agency was not compelled to credit her explanation

13   that she only lived in Illinois for a short time.   See id.   The

14   agency also reasonably relied on Jin’s internally inconsistent

15   testimony regarding the dates that she allegedly wrote and

16   submitted   articles   for    the   Chinese   Democratic   Party.

17   Moreover, her testimony regarding when an article was written

18   and published was inconsistent with a copy of that article.




                                     4
1    These   inconsistencies   supported   the   agency’s   credibility

2    determination.1

3        Having questioned Jin’s credibility, the agency did not err

4    in relying further on her failure to provide certain available

5    evidence corroborating her claim.     An applicant’s failure to

6    corroborate testimony may bear on credibility, either because

7    the absence of particular corroborating evidence is viewed as

8    suspicious, or because the absence of corroboration in general

9    makes an applicant unable to rehabilitate testimony that has

10   already been called into question.    See Biao Yang v. Gonzales,

11   496 F.3d 268, 273 (2d Cir. 2007).

12       The agency reasonably relied on Jin’s failure to provide

13   corroborating evidence from her husband, who Jin stated was

14   aware of her political activities in the United States.       Her

15   explanations were insufficient to establish that she was unable

16   to seek testimony or an affidavit from her husband, who, as a

17   potential derivative beneficiary, had an incentive to testify.

18   See Yan Juan Chen v. Holder, 658 F.3d 246, 253 (2d Cir. 2011)

     1
       While the agency erred in finding inconsistencies regarding
     whether police visited Jin’s father in China in February 2008,
     remand would be futile because the other findings provide
     substantial evidence for the adverse credibility
     determination. See Siewe v. Gonzales, 480 F.3d 160, 167 (2d
     Cir. 2007).
                                     5
1    (noting that the husband of an alien had “every incentive to

2    testify on her behalf because, to the extent his testimony

3    supported her application, it would inure to his benefit”).

4    The agency also reasonably determined that Jin should have

5    produced copies of the articles that she allegedly authored.

6         Finally, the agency reasonably gave diminished weight to

7    the letters from Jin’s father because they were prepared for

8    her case and her father was not subject to cross-examination.

9    Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010),

10   over’d on other grounds by Hui Lin Huang v. Holder, 677 F.3d

11   130, 133-38 (2d Cir. 2012).         Accordingly, the agency did not

12   err in determining that Jin failed to corroborate her claim.

13   See, e.g., Matter of L-A-C-, 26 I. & N. Dec. 516, 519 (B.I.A.

14   2015)   (“[R]egardless     of   whether        an   applicant   is   deemed

15   credible, he has the burden to corroborate the material elements

16   of the claim where the evidence is reasonably obtainable,

17   without advance notice from the [IJ].”).

18        Given    the   inconsistency       and    corroboration     findings,

19   substantial evidence supports the agency’s adverse credibility

20   determination.      See Xiu Xia Lin, 534 F.3d at 167.           The adverse

21   credibility     determination       is        dispositive   of       asylum,


                                         6
1    withholding of removal, and CAT relief, as the claims were based

2    on the same factual predicate.       Paul v. Gonzales, 444 F.3d 148,

3    156-57 (2d Cir. 2006).

4        For the foregoing reasons, the petition for review is

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

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

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

8    is DISMISSED as moot.

 9                                FOR THE COURT:
10                                Catherine O’Hagan Wolfe, Clerk




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