         12-161
         Jin v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A087 446 531
                           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 30th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       LONG JIN,
14                       Petitioner,
15
16                       v.                                     12-161
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Long Jin, Pro Se, Flushing, New
24                                      York.
25
26       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
27                                      Attorney General; James A. Hunolt,
28                                      Senior Litigation Counsel; Kohsei
29                                      Ugumori, Attorney, Office of
30                                      Immigration Litigation, United
31                                      States Department of Justice,
32                                      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       Long Jin, a native and citizen of the People’s Republic

 6   of China, seeks review of a December 16, 2011 decision of

 7   the BIA affirming the February 4, 2010 decision of an

 8   Immigration Judge (“IJ”), which pretermitted his application

 9   for asylum and denied his application for withholding of

10   removal and relief under the Convention Against Torture

11   (“CAT”).     In re Long Jin, No. A087 446 531 (B.I.A. Dec. 16,

12   2011), aff’g No. A087 446 531 (Immig. Ct. N.Y. City Feb. 4,

13   2010).     We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       We review the decision of the IJ as modified and

16   supplemented by the BIA.     See Yan Chen v. Gonzales, 417 F.3d

17   268, 271 (2d Cir. 2005); Xue Hong Yang v. U.S. Dep’t of

18   Justice, 426 F.3d 520, 522 (2d Cir. 2005).     The applicable

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

20   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

21   (2d Cir. 2009).     Because Jin does not challenge the IJ’s

22

23

                                     2
 1   pretermission of his asylum application as untimely, we

 2   consider only withholding of removal and CAT relief.

 3       For applications such as Jin’s, governed by the

 4   amendments made to the Immigration and Nationality Act by

 5   the REAL ID Act of 2005, the agency may, considering the

 6   totality of the circumstances, base a credibility finding on

 7   the applicant’s “demeanor, candor, or responsiveness,” the

 8   plausibility of her account, and inconsistencies in her

 9   statements, without regard to whether they go “to the heart

10   of the applicant’s claim.”   See 8 U.S.C.

11   §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin v.

12   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).    We will “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 a ruling.    Xiu Xia

16   Lin, 534 F.3d at 167.

17       Here, the IJ reasonably based her credibility finding

18   on Jin’s inconsistent testimony and inconsistencies between

19   his testimony and his documentary evidence.   Indeed, the

20   record reflects that: (1) Jin’s testimony that he stopped

21   receiving salary payments in 2003 was contrary to his later

22   testimony that the payments had stopped in 2001 and 2004,


                                   3
 1   and also contrary to his statement in his asylum application

 2   that his salary was first withheld in 2004; (2) Jin’s

 3   testimony that 380 individuals, 200 of whom were workers,

 4   attended the first protest he organized was contrary to his

 5   asylum application statement and his wife’s letter, which

 6   stated that 80 workers attended the protest; and (3) Jin’s

 7   testimony that he was dismissed on May 2, 2005, was contrary

 8   to his testimony and his statement in his asylum application

 9   that he was dismissed on March 17, 2005, after his second

10   detention.

11       The IJ also reasonably relied on omissions from Jin’s

12   asylum application of any mention that he had been beaten

13   during his first police detention and that he had been

14   suspended after that detention, and on his failure to

15   testify about the complaints he filed against his company,

16   which he mentioned in his asylum application.   See Xiu Xia

17   Lin, 534 F.3d at 167 (providing that an IJ may support an

18   adverse credibility determination with “any inconsistency or

19   omission”).

20       The IJ was not required to credit Jin’s explanations

21   for these inconsistencies and omissions.   See Majidi v.

22   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (providing that


                                  4
 1   the agency need not credit an applicant’s explanations for

 2   inconsistent testimony unless those explanations would

 3   compel a reasonable fact-finder to do so).   Jin’s

 4   explanations regarding the number of protesters did not

 5   explain his testimony that only 200, not 380, workers

 6   attended the first protest he organized, and his explanation

 7   that he was confused when he first testified that his salary

 8   payments stopped in 2003 did not explain why he later

 9   changed his testimony twice.   Because the IJ’s assessment of

10   Jin’s demeanor as hesitant and non-responsive is supported

11   by these “specific examples of inconsistent testimony,” we

12   also defer to that finding.    Li Hua Lin v. U.S. Dep’t of

13   Justice, 453 F.3d 99, 109 (2d Cir. 2006).

14       The IJ also reasonably afforded minimal weight to the

15   letters Jin submitted from his wife and his colleague

16   because his wife’s letter was written by an interested

17   party, not notarized, and conflicted with his testimony

18   regarding the number of protesters, and his colleague’s

19   letter conflicted with his testimony that both workers and

20   their spouses attended the first protest.    See Xiao Ji Chen

21   v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)

22   (noting that the weight to be accorded to documentary

23   evidence lies largely within the IJ’s discretion).    Given
                                    5
 1   the discrepancies between Jin’s application and testimony,

 2   the IJ reasonably relied on the lack of reliable

 3   corroboration as further bearing on his credibility.       Chuilu

 4   Liu v. Holder, 575 F.3d 193, 198 n.5 (2d Cir. 2009); see

 5   also Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).

 6       Based on the inconsistencies, omissions, and lack of

 7   corroboration to rehabilitate Jin’s testimony, as well as

 8   the agency’s demeanor finding to which we defer, the adverse

 9   credibility determination is supported by substantial

10   evidence.     Because the only evidence of a threat to Jin’s

11   life or freedom, or that he was likely to be tortured,

12   depended upon his credibility, the adverse credibility

13   determination in this case precludes success on his claims

14   for both withholding of removal and CAT relief.     See Paul v.

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

16       For the foregoing reasons, the petition for review is

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

18   removal that the Court previously granted in this petition

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

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

21

22

23
                                     6
1   oral argument in this petition is DENIED in accordance with

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

3   Circuit Local Rule 34.1(b).

4

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




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