    15-1614
    Lin v. Lynch
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A087 789 264

                        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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    19th day of August, two thousand sixteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             RICHARD C. WESLEY,
             PETER W. HALL,
                  Circuit Judges.
    _____________________________________

    XUE JU LIN,
             Petitioner,

                   v.                                                15-1614
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      H. Raymond Fasano, Youman, Madeo &
                                         Fasano, LLP, New York, NY.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Derek C.
                                         Julius, Senior Litigation Counsel;
                                         Deitz P. Lefort, Trial Attorney,
                                         Office of Immigration Litigation,
                               United States Department of Justice,
                               Washington, D.C.

      UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

      Petitioner Xue Ju Lin, a native and citizen of the People’s

Republic of China, seeks review of the April 21, 2015, and

October 25, 2013, decisions of the BIA affirming an October 28,

2011, decision of an Immigration Judge (“IJ”) denying Lin’s

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).      In re Xue Ju Lin,

No. A087 789 264 (B.I.A. Apr. 21, 2015, Oct. 25, 2013), aff’g

No. A087 789 264 (Immig. Ct. N.Y. City Oct. 28, 2011).     We assume

the   parties’   familiarity    with   the   underlying   facts   and

procedural history in this case.

      We have reviewed the IJ’s decision as modified by the BIA.

See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

(2d Cir. 2005).    The applicable standards of review are well

established.     See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).        For

                                  2
asylum applications like Lin’s, governed by the REAL ID Act,

the   agency   may,      “[c]onsidering    the    totality   of   the

circumstances . . . base a credibility determination on

demeanor, candor, or responsiveness of the applicant” and

inconsistencies in an applicant’s statements and other record

evidence “without regard to whether” those inconsistencies go

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

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.            The

adverse credibility determination is supported by substantial

evidence.

      As an initial matter, the Government is correct that Lin

has waived any challenge to the IJ’s reliance on her evasive

demeanor or her sham marriage because she did not attack these

findings in her brief.     See Shunfu Li v. Mukasey, 529 F.3d 141,

146-47 (2d Cir. 2008).     Moreover, as the Government argues, Lin

failed to exhaust her argument that the BIA conflated abortions

and sterilizations in relying on the 2007 State Department

Profile of Asylum Claims.       The issue presented to the BIA was

whether it could take notice of the report at all, not whether

it had misinterpreted the report.         Therefore, we decline to

address this argument.      Lin Zhong v. U.S. Dep’t of Justice, 480
                                  3
F.3d 104, 107, 121-23 (2d Cir. 2007).       In any event, even

disregarding the challenge to the report, we conclude that the

adverse credibility determination is supported by substantial

evidence and is dispositive of Lin’s claims for relief.

    Lin’s failure to challenge the IJ’s finding that she

entered into a sham marriage to obtain a visa is dispositive

of her petition because that finding, standing alone, is

sufficient to support the adverse credibility determination.

In certain circumstances “a single false document or a single

instance of false testimony may (if attributable to the

petitioner) infect the balance of the alien’s uncorroborated

or unauthenticated evidence.”   Siewe v. Gonzales, 480 F.3d 160,

170 (2d Cir. 2007); see also id. at 171 (holding that “even

ancillary evidence sometimes supports” the application of

falsus in uno falsus in omnibus (false in one thing, false in

everything)).   Lin admitted that she entered into a sham

marriage to obtain a visa and immigrate to the United States.

This admission shows a propensity to lie to obtain immigration

benefits, and the agency reasonably concluded that it cast doubt

on the entirety of Lin’s claim.     This conclusion is supported

by the timing of the marriage.      Lin entered into the second
                                4
marriage prior to her second pregnancy (by her first husband).

This fact supports the conclusion that she was trying to get

into the United States—and was willing to lie to do so—before

the   alleged     forced    sterilization.        The   IJ    had   grounds,

therefore, to conclude that she would continue to lie in her

asylum application.         Siewe, 480 F.3d at 170.

      Moreover,     Lin’s    credibility   was    further      called     into

question     by    her     inconsistent    testimony         regarding     the

sterilization.       Lin initially testified that she was forcibly

sterilized after she gave birth to her second child.                  Later,

however, she testified that, after the birth of her second

child, family planning officials forced her to undergo an IUD

insertion.      The IJ was not required to credit Lin’s explanation

that she misspoke: the translator confirmed the answer, and the

questions Lin was asked were simple and referred to her

testimony,      given    immediately    before,    that      she    had   been

sterilized.       Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.

2005).     In addition, the fact that Lin submitted medical

evidence from a U.S. doctor to confirm that she was sterilized

does not mitigate the impact of this inconsistency.                        The

medical evidence does not confirm when the sterilization
                                    5
occurred or whether it was voluntary or involuntary, and

provides no explanation for Lin’s testimony regarding an IUD.

    Given the undisputed findings that Lin engaged in marriage

fraud and that she was evasive when questioned about her

marriage, as well as the discrepancy concerning what happened

to her in China (an IUD insertion or sterilization), the

“totality of the circumstances” supports the agency’s adverse

credibility determination.       8 U.S.C. § 1158(b)(1)(B)(iii);

Xiu Xia Lin, 534 F.3d at 167.    Accordingly, because Lin’s claim

relied on her credibility, the agency did not err in denying

asylum, withholding of removal, and CAT relief because all three

forms of relief were based on the same factual predicate.   Paul

v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED.

                                FOR THE COURT:
                                Catherine O=Hagan Wolfe, Clerk




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