         12-3159
         Jin v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A099 328 460


                          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 6th day of January, two thousand fourteen.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                DENNY CHIN,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       YINGCHUN JIN,
14                Petitioner,
15
16                       v.                                     12-3159
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Yingchun Jin, Pro Se, Flushing, New
24                                     York
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Greg D. Mack,
28                                     Senior Litigation Counsel; Shahrzad
29                                     Baghai, Trial Attorney, Office of
 1                          Immigration Litigation, United
 2                          States Department of Justice,
 3                          Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Yingchun Jin, a native and citizen of the People’s

10   Republic of China, seeks review of a July 13, 2012, decision

11   of the BIA affirming the February 3, 2011, decision of

12   Immigration Judge (“IJ”) Barbara A. Nelson, which denied her

13   application for asylum, withholding of removal, and relief

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

15   Yingchun Jin, No. A099 328 460 (B.I.A. July 13, 2012), aff’g

16   No. A099 328 460 (Immig. Ct. N.Y. City Feb. 3, 2011).     We

17   assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       Under the circumstances of this case, we have reviewed

20   both the IJ’s and the BIA’s opinions.   See Yun-Zui Guan v.

21   Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).     The applicable

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

23   § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

24   510, 513 (2d Cir. 2009).


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

 2   amendments made to the Immigration and Nationality Act by

 3   the REAL ID Act of 2005, the agency may, “[c]onsidering the

 4   totality of the circumstances,” base a credibility finding

 5   on the plausibility of an applicant’s account, as well as

 6   inconsistencies in her statements, without regard to whether

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

 8   §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see Xiu Xia Lin v.

 9   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam).

10   Furthermore, for purposes of a credibility determination,

11   “[a]n inconsistency and an omission are . . . functionally

12   equivalent.”   Xiu Xia Lin, 534 F.3d at 166.   We “defer [ ]

13   to an IJ’s credibility determination unless, from the

14   totality of the circumstances, it is plain that no

15   reasonable fact-finder could make such an adverse

16   credibility ruling.”   Id. at 167.   In this case, the agency

17   reasonably based its adverse credibility finding on the

18   discrepancies between Jin’s asylum application and

19   testimony, the discrepancies between her testimony and the

20   evidence proffered by her sister, the negative demeanor of

21   Jin and her sister, and a failure to provide corroborating

22   evidence.


                                   3
 1       Jin asserted in her asylum application that her family

 2   in China had not experienced any harm, but during her

 3   testimony, she stated that the police had beaten her husband

 4   in August 2009 due to her participation in the Chinese

 5   Democracy and Justice Party (“CDJP”).   She also testified

 6   that she had written two articles in Chinese criticizing the

 7   Chinese government for the CDJP and that she had shared her

 8   hand-written drafts with her sister and had taken her sister

 9   to the CDJP office in Flushing to see the final versions

10   posted on the party website.   However, her sister testified

11   that she had learned of Jin’s articles and CDJP membership

12   when her roommate showed her the party website at home and

13   she saw Jin’s photograph and two articles written in Korean.

14   These inconsistencies regarding the basis for Jin’s fear of

15   persecution provide substantial evidence for the agency’s

16   adverse credibility determination.   See Xiu Xia Lin, 534

17   F.3d at 166, 167.

18       The adverse credibility determination is bolstered by

19   the IJ’s observations regarding Jin and her sister’s

20   demeanor and Jin’s lack of corroborating evidence.     We

21   accord particular deference to the trier of fact’s

22   assessment of demeanor, as she was in the best position to


                                    4
 1   observe their manner while testifying.    See Tu Lin v.

 2   Gonzales, 446 F.3d 395, 400 (2d Cir. 2006).     And, Jin’s

 3   failure to provide reasonably available evidence to

 4   corroborate her claim prevented her from rehabilitating the

 5   testimony that had been called into question.     See Biao Yang

 6   v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).     Furthermore,

 7   the agency reasonably declined to credit Jin’s explanations

 8   for failing to provide corroborating evidence.     See Majidi

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

10       Given the discrepancies, negative demeanor, and lack of

11   corroboration, the totality of the circumstances supports

12   the agency’s credibility determination.    See 8 U.S.C.

13   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.       As all

14   of Jin’s claims share the same factual basis, the adverse

15   credibility finding necessarily precludes success on asylum,

16   withholding of removal, and CAT relief.    See Paul v.

17   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

18       For the foregoing reasons, the petition for review is

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

20   removal that the Court previously granted in this petition

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

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

23   oral argument in this petition is DENIED in accordance with
                                   5
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

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




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