Lin v. Garland

L
   19-140
   Lin v. Garland
                                                                         BIA
                                                                    Nelson, IJ
                                                                 A206 899 515
                         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.

        At a stated term of the United         States Court of Appeals
   for the Second Circuit, held at the        Thurgood Marshall United
   States Courthouse, 40 Foley Square,        in the City of New York,
   on the 18th day of May, two thousand       twenty-one.

   PRESENT:
            ROBERT A. KATZMANN,
            RICHARD C. WESLEY,
            SUSAN L. CARNEY,
                 Circuit Judges.
   _____________________________________

   WENHUI LIN,
            Petitioner,

                    v.                                  19-140
                                                        NAC
   MERRICK B. GARLAND, UNITED
   STATES ATTORNEY GENERAL,
            Respondent.
   _____________________________________

   FOR PETITIONER:                  Zhen Liang Li, Law Office of Zhen
                                    Liang Li, New York, NY.

   FOR RESPONDENT:                  Joseph H. Hunt, Assistant Attorney
                                    General; Paul Fiorino, Senior
                                    Litigation Counsel; Sherry D.
                                    Soanes, Trial Attorney, Office of
                                   Immigration Litigation, United
                                   States Department of Justice,
                                   Washington, DC.

      UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

      Petitioner Wenhui Lin, a native and citizen of                  the

People’s Republic of China, seeks review of a December 20,

2018, decision of the BIA affirming a November 1, 2017,

decision     of   an   Immigration    Judge   (“IJ”)   denying     asylum,

withholding of removal, and protection under the Convention

Against Torture (“CAT”). See In re Wenhui Lin, No. A 206 899

515 (B.I.A. Dec. 20, 2018), aff’g No. A 206 899 515 (Immig.

Ct.   N.Y.   City      Nov.   1,   2017).     We   assume   the   parties’

familiarity with the underlying facts and procedural history.

      Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA, i.e., minus the

inconsistency in the arrest warrant that the BIA declined to

rely on.     See Xue Hong Yang v. U.S. Dep’t of Justice, 

426

F.3d 520

, 522 (2d Cir. 2005).          We review adverse credibility

determinations for substantial evidence. See Hong Fei Gao v.

Sessions, 

891 F.3d 67

, 76 (2d Cir. 2018); see also 8 U.S.C.
                             2
§ 1252(b)(4)(B).

    “Considering the totality of the circumstances, and all

relevant factors, a trier of fact may base a credibility

determination on . . . the consistency between the applicant’s

or witness’s written and oral statements . . . , the internal

consistency of each such statement, [and] the consistency of

such statements with other evidence of record . . . without

regard to whether an inconsistency, inaccuracy, or falsehood

goes to the heart of the applicant’s claim . . . .” 8 U.S.C.

§ 1158(b)(1)(B)(iii); see also Xiu Xia Lin v. Mukasey, 

534

F.3d 162

, 163–64 (2d Cir. 2008).      “We defer . . . to an IJ’s

credibility determination unless, from the totality of the

circumstances, it is plain that no reasonable fact-finder

could make such an adverse credibility ruling.”         Xiu Xia 

Lin,

534 F.3d at 167

; accord Hong Fei 

Gao, 891 F.3d at 76

.           The

agency’s determination that Lin was not credible as to his

claim that he was arrested, detained, and beaten in China on

account of his religious practice is supported by substantial

evidence.

    The     agency   reasonably   relied   on   Lin’s   inconsistent

account of his past persecution as compared to the account in


                                  3
his friend’s letter.       See 8 U.S.C. § 1158(b)(1)(B)(iii); see

Xiu Xia 

Lin, 534 F.3d at 167

(upholding agency’s reliance on

discrepancies between the petitioner’s testimony and letters

from third parties).       Lin testified that his friend, Guiluan

Lin was arrested with him, but his friend’s letter states

that “Lin, Wenhui was arrested with pastor and other members.

They were detained . . . , they were asked to report to local

police . . . , they lost their personal freedom.”                 Certified

Admin. Record 29.         A plain reading of the letter suggests

that Lin and others were arrested, but not Guiluan Lin.                   See

Hong   Fei   

Gao, 891 F.3d at 78

,       81   (stating   that   direct

contradictions and inconsistencies are more probative of

credibility than omissions).              The BIA was not required to

credit an updated letter that Lin presented on appeal--in

which Guiluan Lin stated that he had also been arrested and

had not expressed himself well in the prior letter because of

his    limited      education--as         Lin    did    not     allege    any

mistranslation or explain why a lack of education would have

resulted in such a mistake. See Majidi v. Gonzales, 

430 F.3d

77

, 80-81 (2d Cir. 2005) (“A petitioner must do more than

offer a plausible explanation for his inconsistent statements


                                      4
to secure relief; he must demonstrate that a reasonable fact-

finder would be compelled to credit his testimony.” (internal

quotation marks and citation omitted)).

    The agency also properly relied on the inconsistency

between Lin’s testimony and his mother’s letter regarding

when he first told her about going to church, as well as Lin’s

shifting     testimony        as   he       attempted      to   explain    the

discrepancy.        See   8   U.S.C.        § 1158(b)(1)(B)(iii).         Lin’s

mother wrote that Lin called her the night he first went to

church to tell her that his friend was taking him to church;

but Lin testified that he did not tell his mother until after

he attended; and when confronted with the inconsistency, he

testified that he had told her before, then that he had told

her after, before finally stating he had called her twice.

Although the initial discrepancy was relatively trivial and

could be attributed to a poor memory, the IJ reasonably

concluded that Lin’s vacillating and contradictory responses

undermined    his   credibility.             And   given   Lin’s   ultimately

detailed testimony about two telephone calls, the IJ did not

err in rejecting his explanation of a poor memory.                          See

Majidi, 430 F.3d at 80-81

.


                                        5
     Accordingly,   we   find    that   the   adverse    credibility

determination is supported by substantial evidence. See Hong

Fei 

Gao, 891 F.3d at 76

; Xiu Xia 

Lin, 534 F.3d at 165

–66. 1

That determination is dispositive of the claims for asylum,

withholding of removal, and CAT protection because the claims

were based on the same factual predicate.               See Paul v.

Gonzales, 

444 F.3d 148

, 156–57 (2d Cir. 2006).

     For the foregoing reasons, the petition for review is

DENIED.   All pending motions and applications are DENIED and

stays VACATED.

                                FOR THE COURT:
                                Catherine O’Hagan Wolfe, Clerk




1 We do not rely on the IJ’s finding that Lin failed to provide
details about his medical treatment, where he testified to the
treatment he received and that he was kept in the hospital for
observation after a CT scan. We decline to remand on this basis
because the findings discussed above constitute substantial
evidence for the agency’s decision. See Xiao Ji Chen v. U.S. Dep’t
of Justice, 

471 F.3d 315

, 338–39 (2d Cir. 2006).
                                 6

Add comment

By

Recent Posts

Recent Comments