         10-3680-ag                                                                    BIA
         Lin v. Holder                                                           Abrams, IJ
                                                                               A094 924 136



                          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 30th day of September, two thousand eleven.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                         Circuit Judges.
11       _______________________________________
12
13       BI YUN LIN,
14                Petitioner,
15
16                       v.                                     10-3680-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22       FOR PETITIONER:        Farah Loftus, Century City,
23                              California
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Lyle D. Jentzer, Senior
27                                     Litigation Counsel; John M. McAdams,
28                                     Jr., Attorney, Office of Immigration
29                                     Litigation, United States Department
30                                     of Justice, 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       Bi Yun Lin, a native and citizen of China, seeks review

 6   of an August 27, 2010, decision of the BIA affirming the

 7   October 3, 2008, decision of Immigration Judge (“IJ”) Steven

 8   R. Abrams, which denied her application for asylum,

 9   withholding of removal and relief under the Convention

10   Against Torture (“CAT”).   In re Bi Yun Lin, No. A094 924 136

11   (B.I.A. Aug. 27, 2010), aff’g No. A094 924 136 (Immig. Ct.

12   N.Y. City Oct. 3, 2008).   We assume the parties’ familiarity

13   with the underlying facts and procedural history in this

14   case.

15       Under the circumstances of this case, we have reviewed

16   the decision of the IJ as supplemented by the BIA.     See Yan
17   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The

18   applicable standards of review are well established.     See 8
19   U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
20   F.3d 510, 513 (2d Cir. 2009).

21       As an initial matter, because Lin failed to challenge

22   the IJ’s denial of withholding of removal and CAT relief in
23   her appeal to the BIA, we lack jurisdiction to consider her
24   challenge to the denial of that relief.   8 U.S.C.
                                     2
 1   § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.

 2   2006) (citing Beharry v. Ashcroft, 329 F.3d 51, 59 (2d Cir.
 3   2003)).    We similarly decline to consider the issue of Lin’s

 4   fear of persecution in the form of forced abortion or
 5   sterilization as she did not raise that issue before the

 6   BIA.    See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004)
 7   (holding that “generalized protestations” do not suffice to
 8   alert the court to the “discrete issue” necessary to

 9   properly exhaust a claim at the agency level).

10          Accordingly, the only issue before us is whether the
11   BIA erred in denying Lin’s application for asylum premised

12   upon her past persecution and fear of future persecution

13   based on her religion .

14          For asylum applications governed by the amendments made
15   to the Immigration and Nationality Act by the REAL ID Act of

16   2005, the BIA considers the totality of the circumstances
17   and may base a credibility finding on an asylum applicant’s
18   “demeanor, candor, or responsiveness,” the plausibility of
19   her account, and inconsistencies in her statements, without

20   regard to whether they go “to the heart of the applicant’s
21   claim.”    See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v.

22   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).    We will “defer
23   therefore to an IJ’s credibility determination unless, from

24   the totality of the circumstances, it is plain that no

                                    3
 1   reasonable fact-finder could make” such a ruling.      Xiu Xia

 2   Lin, 534 F.3d at 167.
 3       In this case, the IJ reasonably based his adverse

 4   credibility determination on Lin’s testimony, her husband’s
 5   testimony, and two letters purportedly from a relative of

 6   hers in China and her pastor in the United States.     Liu’s
 7   testimony was internally inconsistent and implausible.
 8   First, she testified that her father’s second cousin had not

 9   been present at a church meeting that was broken up by

10   police officers, but she submitted a letter in which that
11   individual stated he had been present at that meeting.     When

12   confronted with the inconsistency, Lin claimed she had

13   forgotten this detail.    Second, her testimony about her most
14   recent attendance at church prior to the hearing was

15   inconsistent with her husband’s testimony when he was asked

16   about the same event.    Lin’s counsel was given the
17   opportunity to clarify this discrepancy but failed to do so.

18   Third, she testified that she was stopped by a police
19   officer who did not know her name, but that an officer who
20   telephoned her home one month later asked for her by name.

21   She failed to explain how the police learned her identity.
22   Fourth, Lin presented a letter from the pastor of her church

23   in Brooklyn that indicated that she had been attending the
24   church since 2002.   The agency reasonably found this

                                    4
 1   evidence implausible because Lin claimed to have arrived in

 2   the United States in 2007.
 3       The IJ properly relied on the cumulative effect of

 4   these inconsistencies and implausibilities in finding Lin
 5   not credible.     See Liang Chen v. U.S. Att’y Gen., 454 F.3d

 6   103, 106-07 (2d Cir. 2006) (“[T]he IJ may rely upon the
 7   cumulative impact of . . . inconsistencies, and may conduct
 8   an overall evaluation of testimony in light of its

 9   rationality or internal consistency and the manner in which

10   it hangs together with other evidence”) (citations and
11   quotation marks omitted).    Moreover, the IJ provided Lin

12   with multiple opportunities to explain these

13   inconsistencies, but she failed to do so.     See Ming Shi Xue
14   v. BIA, 439 F.3d 111, 125 (2d Cir. 2006) (the agency may not

15   rest an adverse credibility finding on a non-dramatic

16   inconsistency without first putting the applicant on notice
17   and giving the applicant a chance to reconcile the

18   testimony).     The totality of the circumstances supports the
19   BIA’s adverse credibility determination, and we defer to
20   that finding.     See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

21   Lin, 534 F.3d at 167.

22       The BIA’s adverse credibility finding also undermines
23   Lin’s claim of future persecution.    Because she has not

24   provided any basis--other than her testimony regarding past

                                     5
 1   persecution, which the agency reasonably deemed incredible--

 2   to show that the Chinese government would persecute her, she
 3   failed to demonstrate an independent basis for a well-

 4   founded fear of persecution.    Cf. Paul v. Gonzales, 444 F.3d
 5   148, 154 (2d Cir. 2006) (“[A]n applicant may prevail on a

 6   theory of future persecution despite an IJ’s adverse
 7   credibility ruling as to past persecution, so long as the
 8   factual predicate of the applicant’s claim of future

 9   persecution is independent of the testimony that the IJ

10   found not to be credible.”) (emphasis omitted).
11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

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

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

16   oral argument in this petition is DENIED in accordance with

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

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




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