         09-1663-ag
         Lin v. Holder
                                                                                        BIA
                                                                                   Romig, IJ
                                                                               A 099 672 801
                          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
 4       New York, on the 8 th day of February, two thousand ten.
 5
 6       PRESENT:
 7                JOHN M. WALKER, Jr.,
 8                JOSÉ A. CABRANES,
 9                BARRINGTON D. PARKER,
10                         Circuit Judges.
11       _______________________________________
12
13       DE HE LIN,
14                Petitioner,
15
16                       v.                                     09-1663-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Michael Brown, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Daniel E. Goldman, Senior
27                                     Litigation Counsel; Matthew A.
28                                     Spurlock, Attorney, Office of
29                                     Immigration Litigation, Washington,
30                                     D.C.
31
32
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 is

4    DENIED.

5           Petitioner De He Lin, a native and citizen of China,

6    seeks review of the March 26, 2009 order of the BIA affirming

7    the October 17, 2007 decision of Immigration Judge (“IJ”)

8    Jeffrey    L.    Romig       denying    Lin’s        application      for     asylum,

9    withholding      of    removal,      and        relief     under   the   Convention

10   Against Torture (“CAT”).             In re Lin De Hao, No. A 099 672 801

11   (B.I.A. Mar. 26, 2009), aff’g No. A 099 672 801 (Immig. Ct.

12   N.Y. City Oct. 17, 2007).            We assume the parties’ familiarity

13   with the underlying facts and procedural history in this case.

14          Under the circumstances of this case, we review both the

15   IJ’s and the BIA’s decisions.                   See Yan Chen v. Gonzales, 417

16   F.3d    268,    271    (2d    Cir.   2005).           We    review    the    agency’s

17   determination         under    the   “substantial           evidence”       standard.

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

19          The IJ’s adverse credibility determination was supported

20   by   substantial       evidence.       As       a   preliminary      matter,    Lin’s

21   argument that the IJ erred by relying on inconsistencies too

22   minor and unrelated to his claim is without merit.                          Under the

23   REAL ID Act, which applies to Lin’s application for relief,

24   an IJ may rely on any inconsistency when making a credibility

                                                 2
1    determination without regard to whether that inconsistency

2    goes to the heart of the applicant’s claim.                           See 8 U.S.C.

3    § 1158(b)(1)(B)(iii).

4         In addition, we uphold the IJ’s finding that the abortion

5    certificate      Lin     submitted        reflected       adversely          on     his

6    credibility.       Id.      Lin        argues   that      the    IJ    engaged       in

7    impermissible speculation regarding the authenticity of the

8    certificate      and    placed    excessive         reliance      on    the       State

9    Department Report in the record.                However, we have held that

10   an IJ may properly disbelieve an asylum applicant’s claim that

11   the Chinese government issued his wife a so-called “abortion

12   certificate”     following       her    involuntary       abortion,         when    the

13   State Department reports that its officials are “unaware” of

14   the Chinese government issuing such certificates for anything

15   other than voluntary abortions.              See    Tu Lin v. Gonzales,             446

16   F.3d 395, 400 (2d Cir. 2006).

17        The    IJ   also    properly       found      that   Lin’s       inconsistent

18   explanations regarding his reason for obtaining a passport in

19   China      undermined      his     credibility.                 See     8     U.S.C.

20   §   1158(b)(1)(B)(iii).           Initially,        Lin    testified        that     he

21   obtained the passport because he wanted to be smuggled into

22   the United States.        However, when the IJ pointed out that Lin

23   received the passport before his alleged difficulties with

24   Chinese    authorities     began,        Lin    replied     that       he   got     the

                                              3
1    passport so that he could go on vacation.        When the IJ asked

2    Lin if he planned to go on vacation at that time, he first

3    replied “no,” but then changed his answer to “yes,” stating

4    that he “planned to go on vacation.”

5         Ultimately,    substantial     evidence   supported          the   IJ’s

6    adverse   credibility      determination.       See     8     U.S.C.       §

7    1252(b)(4)(B); Xiu Xia      Lin,    534 F.3d at 167.         Therefore,

8    because the only evidence that Lin was likely to be persecuted

9    or   tortured   depended   upon    his   credibility,       the    adverse

10   credibility determination in this case necessarily precluded

11   success on his claims for asylum, withholding of removal, and

12   CAT relief.     See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

13   2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

14   523 (2d Cir. 2005).

15        For the foregoing reasons, the petition for review is

16   DENIED.   As we have completed our review, any pending motion

17   for a stay of removal in this petition is DISMISSED as moot.

18   Any pending request for oral argument in this petition is

19   DENIED in accordance with Federal Rule of Appellate Procedure

20   34(a)(2), and Second Circuit Local Rule 34.1(b).
21
22                                     FOR THE COURT:
23                                     Catherine O’Hagan Wolfe, Clerk
24
25
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