         11-3888
         Lin v. Holder
                                                                                         BIA
                                                                            Gordon-Uruakpa, IJ
                                                                                 A087 445 511


                          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 3rd day of August, two thousand twelve.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                GERARD E. LYNCH,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       WANHANG LIN, AKA MING CAO LIN,
14                Petitioner,
15
16                       v.                                     11-3888
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23
24       FOR PETITIONER:         Gary J. Yerman, New York, New York.
25
26       FOR RESPONDENT:         Stuart F. Delery, Assistant Attorney
27                               General; Shelley R. Goad, Assistant
28                               Director; Elizabeth R. Chapman, Trial
29                               Attorney, Office of Immigration
30                               Litigation, Civil Division, United States
31                               Department of Justice, Washington, D.C.
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

 4   is DENIED.

 5       Petitioner Wanhang Lin, a native and citizen of the

 6   People’s Republic of China, seeks review of a September 6,

 7   2011, order of the BIA affirming the October 7, 2009,

 8   decision of Immigration Judge (“IJ”) Vivienne E. Gordon-

 9   Uruakpa denying his application for asylum, withholding of

10   removal, and relief under the Convention Against Torture

11   (“CAT”).     In re Wanhang Lin, No. A087 445 511 (B.I.A. Sep.

12   6, 2011), aff’g No. A087 445 511 (Immig. Ct. N.Y. City Oct.

13   7, 2009).    We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as supplemented by the BIA.     See Yan Chen

17   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); Yanqin Weng v. Holder, 562 F.3d 510,

20   513 (2d Cir. 2009).    For asylum applications, such as Lin’s,

21   governed by the REAL ID Act, the agency may, considering the

22   totality of the circumstances, base a credibility finding on


                                     2
 1   an applicant’s demeanor, the plausibility of his account, or

 2   inconsistencies in his statements, without regard to whether

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

 4   § 1158(b)(1)(B)(iii).

 5       Here, the agency’s adverse credibility determination

 6   rested in part on the IJ’s finding that Lin’s credibility

 7   was undermined because a letter he submitted from his father

 8   did not include his father’s role in taking Lin to a

 9   hospital after he was released from detention.     Generally,

10   the agency may rely on omissions as the basis for an adverse

11   credibility determination.   See Xiu Xia Lin v. Mukasey, 534

12   F.3d 162, 166 n.3 (2d Cir. 2008) (per curiam).     However, the

13   agency’s assumption that the letter should have mentioned

14   that hospital visit is not supported by the record: the

15   letter was personal correspondence to Lin, detailing only

16   the broad outline of what happened to him in China and

17   wishing him good luck in his asylum application, and thus

18   there was no reason to expect that it would include this

19   detail.

20       Nevertheless, remand is not necessary as “we can state

21   with confidence that the IJ would adhere to [her] decision

22   were the petition remanded,” because there are “ample,


                                   3
 1   error-free grounds that provide substantial evidence to

 2   support the IJ’s adverse credibility determination.”     Singh

 3   v. BIA, 438 F.3d 145, 149-50 (2d Cir. 2006) (per curiam)

 4   (quotations omitted).

 5       The record supports the IJ’s finding that Lin’s

 6   credibility was undermined by inconsistencies between his

 7   testimony and his wife’s regarding when they started

 8   practicing Falun Gong and when they last practiced Falun

 9   Gong.   The IJ was not required to provide Lin with an

10   opportunity to explain the inconsistencies as they were

11   explicitly discussed during the hearing, putting Lin and his

12   attorney on notice.     Ming Shi Xue v. BIA, 439 F.3d 111, 120-

13   21 (2d Cir. 2006).    Lin also argues that the IJ erred in

14   using his wife’s testimony as the basis for an adverse

15   credibility determination, because the testimony was

16   corroborating evidence and this Court’s case law

17   distinguishes between credibility determinations and

18   findings about the adequacy of corroborating evidence.

19   However, under the REAL ID Act, immigration judges may rely

20   on inconsistencies between an applicant’s statements and any

21   “other evidence [in the] record” in making a credibility

22   determination.   See 8 U.S.C. § 1158(b)(1)(B)(iii).


                                     4
 1       The record also supports the IJ’s finding that Lin’s

 2   credibility was undermined by the fact that he failed to

 3   testify about being hit in the head with a brick when he was

 4   first arrested, while his written statement stated that he

 5   was hit.     The IJ was not compelled to accept Lin’s

 6   explanation that he was confused, as the record shows that

 7   Lin was explicitly asked what happened when he was arrested.

 8   See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A

 9   petitioner must do more than offer a plausible explanation

10   for his inconsistent statements to secure relief; he must

11   demonstrate that a reasonable fact-finder would be compelled

12   to credit his testimony.” (emphasis in original; quotations

13   omitted)).

14       Additionally, the IJ reasonably concluded that Lin’s

15   corroborating evidence did not rehabilitate his otherwise

16   questionable testimony.     See Biao Yang v. Gonzales, 496 F.3d

17   268, 273 (2d Cir. 2007).     As discussed above, Lin’s wife’s

18   testimony contradicted his testimony.     And we defer to the

19   IJ’s conclusion that the uncorroborated detention notice Lin

20   submitted was entitled to no weight in light of a State

21   Department report indicating that many documents from Fujian

22   Province, the source of the notice, are fraudulent. We


                                     5
 1   similarly must defer to the IJ’s other concerns about Lin’s

 2   credibility.   See Qin Wen Zheng v. Gonzales, 500 F.3d 143,

 3   149 (2d Cir. 2007).

 4       Together, the inconsistences between Lin’s testimony

 5   and his wife’s testimony and his asylum application

 6   constitute substantial evidence in support of the agency’s

 7   adverse credibility determination.   See 8 U.S.C.

 8   § 1158(b)(1)(B)(iii).   Accordingly, the agency did not err

 9   in denying Lin’s applications for asylum, withholding of

10   removal, or CAT relief based on that credibility finding.

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

12       For the foregoing reasons, the petition for review is

13   DENIED.   As we have completed our review, the pending motion

14   for a stay of removal in this petition is DENIED as moot.

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




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