         11-3772                                                                       BIA
         Lin v. Holder                                                          Mulligan, IJ
                                                                               A089 250 268



                          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 17th day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                PETER W. HALL,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       XING KAI LIN,
14                Petitioner,
15
16                       v.                                     11-3772
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Feng Li, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Melissa Neiman-
27                                     Kelting, Senior Litigation Counsel,
28                                     Ilissa M. Gould; 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       Xing Kai Lin, a native and citizen of the People’s

 6   Republic of China, seeks review of an August 25, 2011

 7   decision of the BIA affirming the April 23, 2009 decision of

 8   an Immigration Judge (“IJ”)that pretermitted his application

 9   for asylum and denied withholding of removal and relief

10   under the Convention Against Torture (“CAT”).   In re Xing

11   Kai Lin, No. A089 250 268 (B.I.A. Aug. 25, 2011), aff’g No.

12   A089 250 268 (Immig. Ct. N.Y. City Apr. 23, 2009).   We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       We have reviewed both the IJ’s and the BIA’s opinions

16   “for the sake of completeness.”   Zaman v. Mukasey, 514 F.3d

17   233, 237 (2d Cir. 2008).   The applicable standards of review

18   are well established.   See 8 U.S.C. § 1252(b)(4)(B); see

19   also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.

20   2008).   For asylum applications like Lin’s, which are

21   governed by the REAL ID Act, the agency may, “[c]onsidering

22   the totality of the circumstances, . . . base a credibility

23   finding on the demeanor, candor or responsiveness of the

                                   2
 1   applicant, . . . [and] the consistency between the

 2   applicant’s or witness’s written or oral statement, . . .

 3   without regard to whether an inconsistency . . . goes to the

 4   heart of the applicant’s claim.”   See 8 U.S.C.

 5   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.    We

 6   “defer to an IJ’s credibility determination unless, from the

 7   totality of the circumstances, it is plain that no

 8   reasonable fact-finder could make such an adverse

 9   credibility ruling.”   Xiu Xia Lin, 534 F.3d at 167.

10       Substantial evidence supports the agency’s adverse

11   credibility determination, with regard to Lin, since it was

12   reasonably based on Lin’s internally inconsistent testimony.

13   When asked if his wife attempted to obtained a certificate

14   of her abortion, Lin initially stated, “Yes, yes,” and

15   explained that his wife sought the certificate from the

16   doctor who performed the procedure.   But upon being asked

17   when his wife tried to locate the doctor, Lin changed his

18   testimony, stating several times that he “misspoke,” and

19   that his wife did not attempt to obtain a certificate,

20   explaining that he thought he had been asked whether his

21   wife had seen a doctor during her pregnancy, not whether she

22   had tried to obtain a certificate verifying her abortion.


                                   3
 1   The agency did not err in rejecting this explanation.        See

 2   Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005) (the

 3   agency need not credit an applicant’s explanations for

 4   inconsistent testimony unless those explanations would

 5   compel a reasonable fact-finder to do so); see also Xiu Xia

 6   Lin, 534 F.3d at 167 (the agency may “rely on any

 7   inconsistency or omission in making an adverse credibility

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

 9   establishes that an asylum applicant is not credible.”).

10       The agency’s adverse credibility determination is

11   further supported by the IJ’s demeanor finding.     The IJ

12   described Lin as appearing nervous throughout the hearing,

13   called his demeanor on cross-examination “horrible,” and

14   reported that his anxiety worsened during cross-examination

15   regarding the abortion certificate.   The IJ’s demeanor

16   finding is therefore supported by the record and is not

17   erroneous.   See Majidi, 430 F.3d at 81 n.1 (particular

18   deference is given to the trier of fact’s assessment of

19   demeanor); see also Zhou Yun Zhang v. INS, 386 F.3d 296 (2d

20   Cir. 2007), overruled on other grounds by Shi Liang Lin v.

21   U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).     Given

22   these findings of inconsistent testimony and poor demeanor,


                                   4
 1   substantial evidence supports the agency’s adverse

 2   credibility determination.   See Xiu Xia Lin, 534 F.3d at

 3   167; Majidi, 430 F.3d at 81 n.1.   We do not reach the IJ’s

 4   pretermission of Lin’s asylum application because the BIA

 5   disposed of Lin’s asylum claim on the IJ’s alternative and

 6   dispositive adverse credibility determination.

 7       For the foregoing reasons, the petition for review is

 8   DENIED and Petitioner’s pending motion for a stay of removal

 9   in this petition is DISMISSED as moot.

10                                FOR THE COURT:
11                                Catherine O’Hagan Wolfe, Clerk




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