         13-1664
         Jin v. Holder
                                                                                       BIA
                                                                                  Wright, IJ
                                                                               A097 438 965
                          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 15th day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                DEBRA ANN LIVINGSTON,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       XING SHU JIN, AKA SONG SUK IM, AKA
14       SONG SIM,
15                 Petitioner,
16
17                       v.                                     13-1664
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Jim Li, Flushing, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Ernesto H. Molina, Jr.,
28                                     Assistant Director; Tracey N.
29                                     McDonald, Trial Attorney, Office of
30                                     Immigration Litigation, United
 1                          States Department of Justice,
 2                          Washington, D.C.
 3
 4       UPON DUE CONSIDERATION of this petition for review of a

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

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

 7   is DENIED.

 8       Petitioner Xing Shu Jin, a native and citizen of China,

 9   seeks review of an April 3, 2013 order of the BIA, affirming

10   the January 11, 2011 decision of an Immigration Judge

11   (“IJ”), which denied asylum, withholding of removal, and

12   relief under the Convention Against Torture (“CAT”).     In re

13   Xing Shu Jin, No. A097 438 965 (B.I.A. April 3, 2013), aff’g

14   No. A097 438 965 (Immig. Ct. N.Y. City Jan. 11, 2011).       We

15   assume the parties’ familiarity with the underlying facts

16   and procedural history in this case.

17       Under the circumstances of this case, we review the

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

19   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The applicable

20   standards of review are well established.     See 8 U.S.C.

21   § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d

22   510, 513 (2d Cir. 2009).

23       In pre-REAL ID Act cases, such as this case, an adverse

24   credibility determination must be based on “specific, cogent


                                  2
 1   reasons” that “bear a legitimate nexus to the finding,” and

 2   any discrepancy must be “substantial” when measured against

 3   the record as a whole.     Secaida-Rosales v. INS, 331 F.3d

 4   297, 307-08 (2d Cir. 2003), superseded by statute, REAL ID

 5   Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, as

 6   recognized in Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64

 7   (2d Cir. 2008) (per curiam).     Substantial evidence supports

 8   the agency’s adverse credibility determination.

 9       The agency’s adverse credibility finding in this case

10   was based on numerous contradictions and inconsistencies in

11   the record regarding the timing and number of Intrauterine

12   Devices (“IUDs”) Jin had inserted.      Specifically, Jin stated

13   in her asylum application that IUDs were inserted in 1989,

14   following the birth of her first child, and in 1993, after

15   her forced abortion.     C.A.R. 615.   At the merits hearing,

16   Jin first testified on cross-examination that she had only

17   one IUD inserted: in 1989, after the birth of her first

18   child.   Upon further questioning, she then provided

19   inconsistent testimony about whether a second IUD had been

20   inserted after her forced abortion in 1993.

21       Jin argues on appeal that these inconsistencies are not

22   central to her asylum claim.     Although the inconsistencies


                                     3
 1   do not directly pertain to the abortion procedure itself,

 2   they do relate to the sequence of events both prior to and

 3   after the procedure, and, critically, the sequence of events

 4   on the day the procedure was performed.    We agree with the

 5   IJ’s determination that the inconsistencies were central to

 6   Jin’s asylum claim because her inability to recall whether

 7   she had an IUD inserted immediately after the abortion

 8   called into question whether she had a forced abortion at

 9   all.    See Secaida-Rosales, 331 F.3d at 307-08.   Furthermore,

10   Jin was confronted with these inconsistencies and had

11   several opportunities to reconcile her testimony.    Although

12   she attributed the inconsistencies to confusion and memory

13   problems following a 2009 surgery, the agency was not

14   compelled to accept those explanations.    See Majidi v.

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

16          Jin also argues on appeal that the BIA erred in

17   requesting the submission of medical records regarding her

18   2009 surgery.    However, the BIA merely noted that Jin had

19   not proffered any evidence, such as medical opinions or

20   records, to substantiate her claim that the 2009 surgery

21   resulted in memory loss.    Jin’s challenge to the agency’s

22   demeanor findings also lacks merit.    We have recognized


                                    4
 1   “that the IJ’s ability to observe the witness’s demeanor

 2   places her in the best position to evaluate whether apparent

 3   problems in the witness’s testimony suggest a lack of

 4   credibility.”     Jin Chen v. U.S. Dep’t of Justice, 426 F.3d

 5   104, 113 (2d Cir. 2005).     In making the adverse credibility

 6   finding, the IJ noted that, when asked questions about IUDs,

 7   Jin “scratched her head on several occasions and muttered to

 8   herself on many occasions.”     C.A.R. 52.   Jin takes issue

 9   with the IJ’s characterization of her demeanor, but where,

10   as here, the agency’s inference “is tethered to the

11   evidentiary record, we will accord deference to the

12   finding.”     See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d

13   Cir. 2007).

14       Finally, having questioned Jin’s credibility, the

15   agency reasonably relied further on her failure to provide

16   reliable corroborating evidence to support her claim.      See

17   Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per

18   curiam).     The agency reasonably questioned Jin’s submission

19   of a “Diagnosis Certificate,” which recommended fifteen days

20   of rest following Jin’s abortion.     The agency relied on a

21   State Department report stating that United States officials

22   are unaware of such documents being issued for involuntary

23   abortions.     See also Xiao Xing Ni v. Gonzales, 494 F.3d 260,
                                     5
 1   263 (2d Cir. 2007).   Jin argues on appeal that the

 2   certificate she proffered is materially different from the

 3   certificates discussed in the State Department report.

 4   However, regardless of her certificate’s authenticity, the

 5   agency correctly observed that it provides no indication of

 6   whether Jin’s abortion was forced or voluntary.

 7       For the foregoing reasons, the petition for review is

 8   DENIED.   As we have completed our review, any stay of

 9   removal that the Court previously granted in this petition

10   is VACATED, and any pending motion for a stay of removal in

11   this petition is DISMISSED as moot.    Any pending request for

12   oral argument in this petition is DENIED in accordance with

13   Federal Rule of Appellate Procedure 34(a)(2), and Second

14   Circuit Local Rule 34.1(b).

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




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