     17-3760
     Lin v. Barr
                                                                                   BIA
                                                                            Vomacka, IJ
                                                                           A076 024 011
                        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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 17th day of July, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   BIN YUEN LIN,
14            Petitioner,
15
16                 v.                                            17-3760
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Margaret W. Wong, Cleveland, OH.
24
25   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
26                                    Attorney General; Jeffery R.
27                                    Leist, Senior Litigation Counsel;
28                                    Jennifer A. Bowen, Trial Attorney,
29                                    Office of Immigration Litigation,
30                                    United States Department of
31                                    Justice, Washington, DC.
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 Bin Yuen Lin, a native and citizen of the

6    People’s Republic of China, seeks review of an October 24,

7    2017, decision of the BIA affirming a January 27, 2017,

8    decision of an Immigration Judge (“IJ”) reinstating a prior

9    denial   of   Lin’s    application     for   asylum,   withholding   of

10   removal, and relief under the Convention Against Torture

11   (“CAT”) and concluding that Lin filed a frivolous asylum

12   application.    In re Bin Yuen Lin, No. A 076 024 011 (B.I.A.

13   Oct. 24, 2017), aff’g No. A 076 024 011 (Immig. Ct. N.Y. City

14   Jan. 27, 2017).       We assume the parties’ familiarity with the

15   underlying facts and procedural history in this case.

16        Under the circumstances of this case, we have reviewed

17   the IJ’s decision as supplemented by the BIA.                Niang v.

18   Holder, 762 F.3d 251, 253 (2d Cir. 2014).               We review the

19   agency’s factual findings for substantial evidence and its

20   legal conclusions de novo.       Id.

21   I.   Frivolous Finding

22        “A person who makes an application for asylum determined

23   to be ‘frivolous,’ or deliberately and materially false, is

                                       2
1    subject to a grave penalty: permanent ineligibility for most

2    forms of relief under the immigration laws.”           Mei Juan Zheng

3    v. Mukasey, 514 F.3d 176, 178 (2d Cir. 2008); see also 8

4    U.S.C. § 1158(d)(6).      Before being subject to this permanent

5    bar, Lin was entitled to procedural safeguards: “(1) notice

6    . . . of the consequences of filing a frivolous application;

7    (2) a specific finding . . . that [she] knowingly filed a

8    frivolous application; (3) sufficient evidence in the record

9    to support the finding that a material element of the asylum

10   application     was   deliberately    fabricated;    and   (4)   .    .   .

11   sufficient opportunity to account for any discrepancies or

12   implausible aspects of the claim.”         In re Y-L-, 24 I. & N.

13   Dec. 151, 155 (B.I.A. 2007).

14        For the reasons discussed below we find no basis to

15   overturn the agency’s determination that Lin knowingly filed

16   a   frivolous   application.      The   agency   employed    all      four

17   procedural    safeguards:   Lin   had   sufficient    notice     of    the

18   consequences of filing a frivolous application because she

19   received both written and oral warnings, see Niang, 762 F.3d

20   at 254-55; the agency explicitly addressed the frivolous

21   finding in its decisions; the agency’s finding is supported

22   by the record; and Lin had an opportunity to explain the

23   discrepancy between her asylum application and her testimony

                                       3
1    and proffered an unpersuasive explanation.      The discussion

2    that follows addresses Lin’s arguments concerning the third

3    and fourth requirements and her challenge to the IJ’s decision

4    not to refrain from exercising his discretion to enter a

5    finding that Lin’s application was frivolous.

6        Lin contends that the third requirement was not satisfied

7    because her omission in her asylum application of her forced

8    abortion and her representation that neither she nor anyone

9    in her family had been arrested or detained did not establish

10   that she had fabricated a material element of her claim.

11   Although we have cautioned against placing too much weight on

12   omissions from asylum applications, see Hong Fei Gao v.

13   Sessions, 891 F.3d 67, 80 (2d Cir. 2018) (explaining that an

14   asylum applicant is “not required to list every incident of

15   persecution” (internal quotation marks omitted)), the concern

16   being addressed was to avoid reliance on omissions of details,

17   not an omission of the sole incident of persecution, id. at

18   82 (distinguishing between “omissions that tend to show that

19   an applicant has fabricated . . . her claim,” and “omissions

20   that arise merely because an applicant’s oral testimony is

21   more detailed than . . . her written application”).      Lin’s

22   omission of her forced abortion from her application—the

23   central element of her claim—belongs to the former category

                                   4
1    and   therefore     supports    the       agency’s    finding      that   her

2    application was frivolous.           Because the forced abortion was

3    the only incident of persecution relevant to her claim, its

4    wholesale omission from her asylum application was suspect.

5    Cf. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 127 (2d

6    Cir. 2007) (“Testimonial inconsistencies are not sufficient

7    as the sole basis for an adverse credibility finding where

8    the inconsistencies do not concern the basis for the claim of

9    asylum   or   withholding,     but    rather      matters    collateral   or

10   ancillary to the claim.” (internal quotation marks omitted)).

11         Further, Lin’s testimony that her mother was detained

12   until Lin surrendered to authorities was in direct conflict

13   with the information provided in her asylum application.

14   Lin’s characterization of this discrepancy as an “omission”

15   downplays     its   significance          given    that     this    conflict

16   necessarily    rendered   either      her    testimony      or   her   asylum

17   application, or both, false.

18         Contrary to Lin’s position, the fourth requirement, an

19   opportunity to explain, also was satisfied.                 First, the IJ

20   explicitly asked Lin why she omitted the forced abortion

21   from her application.     And, given that the abortion was the

22   sole basis of her asylum claim, the IJ was not required to

23   accept Lin’s explanation that she did not want her husband

                                           5
1    to find out about the abortion.    See Majidi v. Gonzales,

2    430 F.3d 77, 80 (2d Cir. 2005).    Nor was the IJ required to

3    credit Lin’s explanation that she was afraid to tell her

4    husband about the abortion because women in China are

5    conservative, particularly because at the time of the

6    abortion, Lin lived openly with her future husband (then

7    boyfriend) in his parents’ home.    See Siewe v. Gonzales,

8    480 F.3d 160, 168–69 (2d Cir. 2007) (“[S]peculation that

9    inheres in inference is not ‘bald’ if the inference is made

10   available to the factfinder by record facts, or even a

11   single fact, viewed in the light of common sense and

12   ordinary experience.”).   The IJ was not required to

13   question Lin separately about the discrepancy between her

14   asylum application and her testimony concerning her family

15   members’ detention because the inconsistency was “self-

16   evident.”   Xian Tuan Ye v. DHS, 446 F.3d 289, 295-96 (2d

17   Cir. 2006).

18   II. Discretion

19       Lin concedes “that the IJ had no obligation to exercise

20   discretion as to the frivolous finding.”    Nevertheless, she

21   argues that the IJ erred in concluding, as a matter of law,

22   that discretionary factors are never a valid basis to excuse

23   a frivolous finding.   As we have explained, an IJ may choose

                                   6
1    to exercise discretion before entering a frivolous finding.

2    See Mei Juan Zheng v. Holder, 672 F.3d 178, 186 (2d Cir.

3    2012).    Here, the IJ acknowledged his authority to exercise

4    discretion but simply declined to exercise it in favor of Lin

5    because discretionary factors did not warrant avoidance of

6    the statutory penalty.   This was not error.   Cf. id. at 186–

7    87.

8          For the foregoing reasons, the petition for review is

9    DENIED.

10                                FOR THE COURT:
11                                Catherine O’Hagan Wolfe,
12                                Clerk of Court
13




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