         12-4854
         Lin v. Holder
                                                                                       BIA
                                                                                 Poczter , IJ
                                                                               A200 930 282
                          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 23rd day of December, two thousand thirteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                GERARD E. LYNCH,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       SUN MIN LIN,
14                Petitioner,
15
16                       v.                                     12-4854
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Troy Nader Moslemi, New York, N.Y.
24
25       FOR RESPONDENT:               Stuart F. Delery, Principal Deputy
26                                     Assistant Attorney General; Derek C.
27                                     Julius, Senior Litigation Counsel;
28                                     Nicole R. Prairie, Trial Attorney,
29                                     Office of Immigration Litigation,
30                                     United 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       Petitioner Sun Min Lin, a native and citizen of the

 6   People’s Republic of China, seeks review of a November 28,

 7   2012, decision of the BIA affirming the June 30, 2011,

 8   decision of Immigration Judge (“IJ”) Aviva L. Poczter, which

 9   denied his application for asylum, withholding of removal,

10   and relief under the Convention Against Torture (“CAT”).     In

11   re Sun Min Lin, No. A200 930 282 (B.I.A. Nov. 28, 2012),

12   aff’g No. A200 930 282 (Immig. Ct. N.Y. City June 30, 2011).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Where the BIA has affirmed the decision of the IJ, we

16   review the entirety of the IJ’s decision, including portions

17   not explicitly discussed by the BIA.   See Guan v. Gonzales,

18   432 F.3d 391, 394 (2d Cir. 2005).   The agency’s findings of

19   fact will be affirmed if they are supported by substantial

20   evidence, and may be overturned only if “any reasonable

21   adjudicator would be compelled to conclude to the contrary.”

22   8 U.S.C. § 1252(b)(4)(B); see also Singh v. Mukasey, 553

23   F.3d 207, 212 (2d Cir. 2009).

                                     2
 1       Because this application is governed by the REAL ID Act

 2   of 2005, the agency may, “[c]onsidering the totality of the

 3   circumstances,” base a credibility finding on the

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

 5   plausibility of his account, and inconsistencies in his

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

 7   of the applicant’s claim.”   8 U.S.C. § 1158(b)(1)(B)(iii);

 8   see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.

 9   2008).   We “defer therefore to an IJ’s credibility

10   determination unless, from the totality of the

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

12   could make such an adverse credibility ruling.”       Xiu Xia

13   Lin, 534 F.3d at 167.

14       Here, the IJ reasonably based her adverse credibility

15   determination on Lin’s inconsistent and implausible

16   testimony, an omission from his asylum application,

17   inconsistencies between Lin’s testimony and his witness’s

18   testimony, and inconsistencies between Lin’s testimony and

19   documentary evidence.   See 8 U.S.C. § 1158(b)(1)(B)(iii);

20   Xiu Xia Lin, 534 F.3d at 167.       Among other things, (1) Lin

21   testified that he hid at a friend’s house in China for six

22   months, but admitted on cross-examination that he spent one

23   month in Cuba during that time; (2) Lin did not list his

                                     3
 1   month-long Cuban residence in his asylum application; (3)

 2   Lin confused dates when confronted with these

 3   inconsistencies; and (4) Lin testified that he traveled to

 4   attend a friend’s wedding in China during the same period he

 5   was hiding from the Chinese police.

 6       The IJ was not required to credit Lin’s explanations

 7   for these testimonial defects.      See Majidi v. Gonzales, 430

 8   F.3d 77, 80-81 (2d Cir. 2005) (providing that the agency

 9   need not credit an applicant’s explanations for inconsistent

10   testimony unless a reasonable fact-finder would be compelled

11   to do so).    Moreover, the IJ based his implausibility

12   finding in part on inconsistencies between Lin’s claim he

13   feared persecution and his admitted behavior while still in

14   China, thus “tethering [the credibility finding] to the

15   evidentiary record,”     Siewe v. Gonzales, 480 F.3d 160, 168-

16   69 (2d Cir. 2007).     Furthermore, we defer to the IJ’s

17   assessment of Lin’s demeanor as non-responsive because it

18   was supported by “specific examples of inconsistent

19   testimony.”    Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109

20   (2d Cir. 2006). Finally, the IJ reasonably relied on the

21   lack of reasonably available corroborating evidence

22   regarding Lin’s efforts to flee China and enter the United

23   States.   See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

24   Cir. 2007).

                                     4
 1       Because the adverse credibility determination is

 2   supported by substantial evidence, the IJ did not err in

 3   denying asylum.   As Lin’s claims for withholding of removal

 4   and CAT relief are based on the same factual predicate, the

 5   adverse credibility determination necessarily precludes

 6   success on those claims.   See Paul v. Gonzales, 444 F.3d

 7   148, 156 (2d Cir. 2006).

 8       For the foregoing reasons, the petition for review is

 9   DENIED.   As we have completed our review, Lin’s pending

10   motion for a stay of removal is DENIED as moot.

11                               FOR THE COURT:
12                               Catherine O’Hagan Wolfe, Clerk
13
14
15




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