     15-3693
     Lin v. Sessions
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A205 050 586

                            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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   3rd day of April, two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            REENA RAGGI,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   YONGCAI LIN,
14            Petitioner,
15
16                     v.                                            15-3693
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Zhen Liang Li, New York, NY.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Patrick
27                                       J. Glen, Senior Litigation Counsel;
28                                       Robert N. Markle, Senior Litigation
29                                       Counsel; Alanna R. Kennedy, Law
30                                       Clerk, Office of Immigration
31                                       Litigation, United States
32                                       Department of Justice, Washington,
33                                       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 is

4    DENIED.

5        Petitioner Yongcai Lin, a native and citizen of the

6    People’s Republic of China, seeks review of an October 19, 2015,

7    decision of the BIA affirming an April 1, 2014, decision of an

8    Immigration Judge (“IJ”) denying Lin’s application for asylum,

9    withholding of removal, and relief under the Convention Against

10   Torture (“CAT”).    In re Yongcai Lin, No. A205 050 586 (B.I.A.

11   Oct. 19, 2015), aff’g No. A205 050 586 (Immig. Ct. N.Y. City

12   Apr. 1, 2014).     We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed the

15   IJ’s decision as modified by the BIA.    Xue Hong Yang v. U.S.

16   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).     Lin has

17   waived any challenge to the agency’s denial of asylum as time

18   barred.   Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d

19   Cir. 2005).   Thus, the only issue before us is the agency’s

20   adverse credibility ruling.

21       We review the agency’s adverse credibility ruling for

22   substantial evidence.    8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin

23   v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).     The agency
                                    2
1    may, “[c]onsidering the totality of the circumstances,” base

2    an    adverse   credibility     determination    on    the    applicant’s

3    “candor, or responsiveness,” and on discrepancies in the

4    applicant’s     statements,     and   on   discrepancies       between    an

5    applicant’s statements and other record evidence.                8 U.S.C.

6    § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.                   “We

7    defer . . . to an IJ’s credibility determination unless . . .

8    it is plain that no reasonable fact-finder could make such an

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

10   Substantial evidence supports the determination that Lin was

11   not credible.

12         First, the agency reasonably relied on a discrepancy

13   between Lin’s testimony and his asylum interview regarding

14   whether he attended a government-sponsored church in China.               In

15   his    asylum   interview,      Lin   stated    that    he    attended     a

16   government-sponsored church from the age of seven or eight

17   (around 1997) until 2007, when he switched to a family church.

18   But at his merits hearing, Lin testified that he had never been

19   to a government-sponsored church.          Lin does not dispute that

20   this inconsistency exists.            And his explanation—that his

21   parents took him to the government-sponsored church only to

22   “take a look”—is not compelling, particularly since it is

23   inconsistent     with   Lin’s    statement     that    he    attended    the
                                           3
1    government-sponsored church for 10 years.               See Majidi v.

2    Gonzales, 430 F.3d 77, 81 (2d Cir. 2005) (“A petitioner ‘must

3    do more than offer a plausible explanation for his inconsistent

4    statements to secure relief; ‘he must demonstrate that a

5    reasonable   fact-finder   would       be   compelled   to   credit   his

6    testimony.’” (quoting Zhou Yun Zhang v. U.S. INS, 386 F.3d 66,

7    76 (2d Cir. 2004))).

8        The IJ also reasonably relied on a four-year discrepancy

9    regarding his attendance at the underground family church: Lin

10   told the asylum officer that he attended a family church

11   beginning in 2007, but testified at the hearing that he started

12   attending that church around 2003.              Confronted with this

13   discrepancy, Lin did not dispute it, but stated that he attended

14   the government-sponsored church just to observe and went to the

15   family church afterward.   This explanation does not resolve the

16   inconsistency regarding when he started attending the family

17   church.   Majidi, 430 F.3d at 81.

18       Third, the agency reasonably relied on Lin’s inconsistent

19   descriptions of the beating he received while in detention.

20   See Lianping Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016).

21   Lin’s asylum application detailed his mistreatment as involving

22   beating with fists, as well as slapping and kicking.             At the

23   hearing, Lin initially testified that the police used their
                                        4
1    fists to beat him, responded “no” when asked if the police used

2    anything else to beat him, and only agreed that he was kicked

3    and slapped when confronted with the statement from his

4    application.      See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing

5    that IJ may rely on lack of responsiveness and inconsistencies);

6    Lianping Li, 839 F.3d at 150 (upholding adverse credibility

7    ruling    where   applicant   “described   the   same   incidents    of

8    persecution differently” in asylum application and testimony).

9        The     agency   also     reasonably   concluded     that   Lin’s

10   corroborating evidence was insufficient to rehabilitate his

11   credibility or independently meet his burden of proof.              See

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

13   (recognizing that “[a]n applicant’s failure to corroborate his

14   . . . testimony may bear on credibility, because the absence

15   of corroboration in general makes an applicant unable to

16   rehabilitate testimony that has already been called into

17   question”); Chuilu Liu v. Holder, 575 F.3d 193, 198 n. 5 (2d

18   Cir. 2009) (“[A] failure to corroborate can suffice, without

19   more, to support a finding that an alien has not met his burden

20   of proof.”); see also 8 U.S.C. § 1158(b)(1)(B)(ii).                  In

21   particular, Lin did not explain the absence of a letter from

22   his parents describing their efforts to obtain evidence of his

23   detention or release.       Such a letter was reasonably available
                                       5
1    given that Lin received other documents from his father and

2    testified that he had asked his father to obtain a bond receipt

3    from the authorities. Chuilu Liu, 575 F.3d at 199.

4        Given     the   foregoing    inconsistencies   and   lack    of

5    corroborating evidence, the totality of the circumstances

6    supports the agency’s adverse credibility ruling.    Xiu Xia Lin,

7    534 F.3d at 167; Biao Yang, 496 F.3d at 273.        Because Lin’s

8    claims for relief were all based on the same factual predicate,

9    the adverse credibility determination is dispositive of asylum,

10   withholding of removal, and CAT relief.     Paul v. Gonzales, 444

11   F.3d 148, 156-57 (2d Cir. 2006).

12       For the foregoing reasons, the petition for review is

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

14   that the Court previously granted in this petition is VACATED,

15   and any pending motion for a stay of removal in this petition

16   is DISMISSED as moot.    Any pending request for oral argument

17   in this petition is DENIED in accordance with Federal Rule of

18   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

19   34.1(b).

20                                   FOR THE COURT:
21                                   Catherine O’Hagan Wolfe, Clerk




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