         12-24
         Jin v. Holder
                                                                                        BIA
                                                                               Balasquide, IJ
                                                                               A089 908 374
                          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 13th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                DEBRA ANN LIVINGSTON,
 8                DENNY CHIN,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _______________________________________
12
13       CHENG JIN,
14                Petitioner,
15
16                       v.                                     12-24
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Thomas V. Massucci, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Carl H. McIntyre,
28                                     Jr., Assistant Director; Christina
29                                     J. Martin, Trial Attorney, Office of
 1                             Immigration Litigation, United
 2                             States Department of Justice,
 3                             Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Cheng Jin, a native and citizen of the People’s

10   Republic of China, seeks review of a December 21, 2011

11   decision of the BIA affirming the March 15, 2010 decision of

12   an Immigration Judge (“IJ”), which denied his application

13   for asylum, withholding of removal, and relief under the

14   Convention Against Torture (“CAT”).     In re Cheng Jin, No.

15   A089 908 374 (B.I.A. Dec. 21, 2011), aff’g No. A089 908 374

16   (Immig. Ct. N.Y. City Mar. 15, 2010).    We assume the

17   parties’ familiarity with the underlying facts and

18   procedural history in this case.

19       We have reviewed the IJ’s decision as supplemented by

20   the BIA.     See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

21   Cir. 2005).    The applicable standards of review are well

22   established.     See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

23   Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).     For

24   asylum applications such as Jin’s, which are governed by the



                                     2
 1   amendments to the Immigration and Nationality Act made by

 2   the REAL ID Act of 2005, the agency “may rely on any

 3   inconsistency or omission in making an adverse credibility

 4   determination as long as the ‘totality of the circumstances’

 5   establishes that an asylum applicant is not credible.”      Xiu

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

 7   curiam) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)).    We find

 8   that the agency’s adverse credibility finding is supported

 9   by substantial evidence.

10          The agency determined that Jin’s testimony was

11   incredible because he testified that he was beaten and

12   detained for assisting a woman who was fleeing from military

13   officers, but his asylum applications omitted those material

14   facts.    Jin argues that the agency erred in finding him

15   incredible based on those omissions because “he never

16   attempted to establish past persecution.”    However, Jin

17   explicitly alleged past persecution by testifying that he

18   “suffered [the Chinese government’s] persecution” for

19   “expos[ing] the[ir] corruption.”    Moreover, contrary to his

20   contention, the agency reasonably relied on Jin’s omissions

21   in finding him incredible because they go to the heart of

22   his fear of future persecution.    Xiu Xia Lin, 534 F.3d at

23   167.

                                    3
 1       Jin also contends that his explanation for the

 2   omissions – he thought the incident was unimportant given

 3   his family’s history of more severe persecution – was

 4   improperly rejected by the agency.   However, Jin’s

 5   explanations were insufficient to compel a reasonable

 6   adjudicator to credit his testimony because the agency

 7   reasonably could have expected him to include an account of

 8   his past harm in his applications precisely because of that

 9   history.   See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir.

10   2007); see also Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d

11   Cir. 2005).

12       Jin further contends that the agency improperly based

13   its adverse credibility finding on non-dramatic

14   inconsistencies without putting him on notice of them and

15   giving him an opportunity to reconcile his testimony.     Jin’s

16   argument is misplaced, however, because during his hearing,

17   he was provided an opportunity to explain the omissions and

18   the IJ was under no obligation to allow him to explain the

19   inconsistencies between his asylum applications and his

20   testimony because they were material and obvious.     Majidi,

21   430 F.3d at 81.

22



                                   4
 1       Finally, because the submission was untimely, the IJ

 2   was not required to admit the letter he proffered from a

 3   friend in China with regard to the awareness of the Chinese

 4   government of Jin’s political activities in the United

 5   States.   See U.S. Department of Justice, Executive Office

 6   for Immigration Review, Immigration Court Practice Manual,

 7   Chapter 3.1(d)(ii); see also Dedji v. Mukasey, 525 F.3d 187,

 8   191 (2d Cir.2008).

 9       For the foregoing reasons, the petition for review is

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

11   for a stay of removal in this petition is DISMISSED as moot.

12                               FOR THE COURT:
13                               Catherine O’Hagan Wolfe, Clerk




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