         12-907
         Lin v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A099 005 587
                          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 15th day of May, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                RICHARD C. WESLEY,
 9                PETER W. HALL,
10                     Circuit Judges.
11       _____________________________________
12
13       MING H. LIN,
14                Petitioner,
15
16                       v.                                     12-907
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Adedayo O. Idowu, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Francis W. Fraser,
27                                     Senior Litigation Counsel; Timothy
28                                     B. Stanton, Trial Attorney, Office
29                                     of Immigration Litigation, United
30                                     States Department of Justice,
31                                     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          Ming H. Lin, a native and citizen of the People’s

 6   Republic of China, seeks review of a February 8, 2012

 7   decision of the BIA affirming the July 13, 2010 decision of

 8   Immigration Judge (“IJ”) Sandy K. Hom, which denied her

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).    In re Ming H.

11   Lin, No. A099 005 587 (B.I.A. Feb. 8, 2012), aff’g No. A099

12   005 587 (Immig. Ct. N.Y. City July 13, 2010).    We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15          Under the circumstances of this case, we have reviewed

16   the decision of the IJ as supplemented and modified by the

17   BIA.    See Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

18   2005); Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

19   Cir. 2005).    The applicable standards of review are well-

20   established.    See 8 U.S.C. § 1252(b)(4)(B); see also Weng v.

21   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

22          For applications such as Lin’s, governed by the

23   amendments made to the Immigration and Nationality Act by

                                    2
 1   the REAL ID Act of 2005, the agency may, considering the

 2   totality of the circumstances, base a credibility finding on

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

 4   plausibility of her account, and inconsistencies in her

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

 6   of [her] claim.”   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

 7   Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per

 8   curiam).   We will “defer . . . to an IJ’s credibility

 9   determination unless, from the totality of the

10   circumstances, it is plain that no reasonable fact-finder

11   could make” such a ruling.     Xiu Xia Lin, 534 F.3d at 167.

12   Here, the IJ reasonably based his adverse credibility

13   determination on Lin’s inconsistent testimony and omission

14   from her asylum application.     See 8 U.S.C.

15   §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d

16   at 167 (providing that an IJ may support an adverse

17   credibility determination with “any inconsistency or

18   omission”).

19       The IJ also reasonably found that Lin’s testimony that

20   Chinese officials permitted her to use her passport to exit

21   the country despite her warrant for arrest was implausible

22   and did not err in relying on that finding to find her not


                                     3
 1   credible.     See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d

 2   Cir. 2007)(finding that while “bald” speculation is an

 3   impermissible basis for an adverse credibility finding,

 4   “[t]he speculation that inheres in inference is not ‘bald’

 5   if the inference is made available to the factfinder by

 6   record facts, or even a single fact, viewed in the light of

 7   common sense and ordinary experience”); see also Xiao Ji

 8   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n.16 (2d

 9   Cir. 2006).    As to Lin’s demeanor, we defer to the IJ’s

10   finding that her hesitancy in answering questions affected

11   her credibility as that finding was connected to Lin’s

12   inconsistent testimony regarding the court summons.       See Lin

13   v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006).

14       Lin contests the IJ’s finding that she failed to

15   provide corroborating evidence, arguing that such evidence

16   was not reasonably available.       To the contrary, the IJ

17   reasonably required proof of her post-detention doctor

18   visit, or any other evidence that she had suffered a

19   dislocated hand, given that Lin testified that X-rays of her

20   hand were available.     See Liu v. Holder, 575 F.3d 193, 198

21   n.5 (2d Cir. 2009).    Considering that Lin provided little

22   evidence that she continued to practice Christianity after


                                     4
 1   August 2009, which is the date of the only letter she

 2   provided from her church, the IJ also reasonably expected

 3   testimony or affidavits from church associates.     See id.

 4   Despite Lin’s assertion that she was unaware that she should

 5   obtain affidavits, in light of purported attempts to

 6   persuade her fellow church members to testify, the IJ

 7   reasonably rejected her explanation.   See Majidi v.

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

 9       Lin also quarrels with the BIA’s reliance on the U.S.

10   State Department’s 2009 International Religious Freedom

11   (“IRF”) Report because that report was not in the

12   administrative record.   However, the BIA is permitted to

13   take administrative notice of government reports, such as

14   the IRF Report, see 8 C.F.R. § 1003.1(d)(3)(iv), and

15   reasonably found that the report contradicted Lin’s claim

16   based on its statement that the Chinese government had

17   provided greater freedoms to Christians in both government-

18   run and underground churches, see 2009 IRF Report,

19   http://www.state.gov/j/drl/rls/irf/2009/127268.htm.

20       Given Lin’s inconsistent testimony, her omission and

21   demeanor, and the lack of corroboration, all of which call

22   into question Lin’s documentary evidence and her practice of

23   Christianity, the totality of the circumstances supports the
                                   5
 1   agency’s adverse credibility determination.    See 8 U.S.C.

 2   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.      As the

 3   only evidence of a threat to Lin’s life or freedom or that

 4   she was likely to be tortured depended upon her credibility,

 5   the adverse credibility determination in this case

 6   necessarily precludes success on her claims for asylum, as

 7   well as withholding of removal and CAT relief.    See Paul v.

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

 9       For the foregoing reasons, the petition for review is

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

11   removal that the Court previously granted in this petition

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

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

14   oral argument in this petition is DENIED in accordance with

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

16   Circuit Local Rule 34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk




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