         11-994
         Lin v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A099 534 100

                          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 6th day of February, two thousand fourteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                REENA RAGGI,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       MING QUN LIN,
14                Petitioner,
15
16                       v.                                     11-994
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Douglas G. Ingraham, Alhambra, CA.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Leslie McKay,
27                                     Assistant Director; Christopher
28                                     Buchanan, 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       Ming Qun Lin, a native and citizen of the People’s

10   Republic of China, seeks review of a January 13, 2011,

11   decision of the BIA affirming the October 20, 2009 decision

12   of Immigration Judge (“IJ”) Sandy Hom, which denied his

13   application for asylum, withholding of removal, and relief

14   under the Convention Against Torture (“CAT”).   In re Ming

15   Qun Lin, No. A099 534 100 (B.I.A. Jan. 13, 2011), aff’g No.

16   A099 534 100 (Immig. Ct. N.Y. City Oct. 20, 2009).   We

17   assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       Under the circumstances of this case, we have reviewed

20   the IJ’s decision as modified by the BIA.   See Xue Hong Yang

21   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

22   The applicable standards of review are well-established.

23   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

24   F.3d 510, 513 (2d Cir. 2009).



                                     2
 1          For asylum applications, like Lin’s, governed by the

 2   amendments made to the Immigration and Nationality Act by

 3   the REAL ID Act of 2005, the agency may, considering the

 4   totality of the circumstances, base a credibility finding on

 5   an asylum applicant’s “demeanor, candor, or responsiveness,”

 6   the plausibility of his account, and inconsistencies in his

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

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

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

10   2008).     Furthermore, for purposes of a credibility

11   determination, “[a]n inconsistency and an omission are . . .

12   functionally equivalent.”     Xiu Xia Lin, 534 F.3d at 166.      We

13   “defer . . . to an IJ’s credibility determination unless,

14   from the totality of the circumstances, it is plain that no

15   reasonable fact-finder could make” such a ruling.       Id. at

16   167.     In this case, the agency reasonably based its adverse

17   credibility finding on an omission from Lin’s initial asylum

18   application and discrepancies between the two applications.

19          In the statement submitted with his initial asylum

20   application, Lin stated that in 2005, when watching

21   individuals practice Falun Gong at a secret location, he was

22   detained by public security officials, but was later able to


                                     3
 1   escape.   A later statement attached to Lin’s amended asylum

 2   application included a significant new detail about this

 3   incident, stating that the following day, public security

 4   officials came to his family home and pressed his family to

 5   “hand [him] over for punishment.” The later statement also

 6   included information about a previously unmentioned

 7   incident, indicating that while he was in middle school, Lin

 8   had criticized the school for punishing another student who

 9   practiced Falun Gong, and that, as a result, Lin was beaten

10   by school officials.

11       Because the REAL ID Act permits the agency to base a

12   credibility finding on any inconsistency, without regard to

13   whether it goes “to the heart of the applicant’s claim,”

14   8 U.S.C. § 1158(b)(1)(B)(iii), Lin’s omission and the

15   inconsistencies between his statements provide substantial

16   evidence supporting the agency’s adverse credibility

17   determination.   See Xiu Xia Lin, 534 F.3d at 166, 167.

18   Furthermore, the agency reasonably declined to credit Lin’s

19   explanations for the omission and discrepancies as evasive

20   and not plausible.     See Majidi v. Gonzales, 430 F.3d 77, 80-

21   81 (2d Cir. 2005).

22



                                     4
 1       Finally, the agency’s finding that Lin failed to

 2   provide reasonably available evidence to support his claim

 3   that he practiced Falun Gong in the United States, such as a

 4   statement from the person who taught him Falun Gong, or from

 5   anyone with whom he practiced Falun Gong, was reasonable,

 6   “because the absence of corroboration in general makes an

 7   applicant unable to rehabilitate testimony that has already

 8   been called into question.”   Biao Yang v. Gonzales, 496 F.3d

 9   268, 273 (2d Cir. 2007); see also Chuilu Liu v. Holder, 575

10   F.3d 193, 198 n.5 (2d Cir. 2009).

11       Given these findings, we conclude that the totality of

12   the circumstances supports the agency’s adverse credibility

13   determination.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

14   Lin, 534 F.3d at 167.   Because the only evidence of a threat

15   to Lin’s life or freedom depended upon his credibility, the

16   adverse credibility finding necessarily precludes success on

17   his claims for asylum, withholding of removal, and CAT

18   relief.   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

19   2006); Xue Hong Yang, 426 F.3d at 523.

20       For the foregoing reasons, the petition for review is

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

22   removal that the Court previously granted in this petition

23   is VACATED, and any pending motion for a stay of removal in
                                   5
1   this petition is DISMISSED as moot. Any pending request for

2   oral argument in this petition is DENIED in accordance with

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

4   Circuit Local Rule 34.1(b).

5                                 FOR THE COURT:
6                                 Catherine O’Hagan Wolfe, Clerk
7
8




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