     15-2327
     Lin v. Lynch
                                                                                         BIA
                                                                               Christensen, IJ
                                                                                A87 791 509

                         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   8th day of August, two thousand sixteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            BARRINGTON D. PARKER,
 9            RICHARD C. WESLEY,
10                 Circuit Judges.
11   _____________________________________
12
13   HONG HUI LIN,
14            Petitioner,
15
16                  v.                                               15-2327
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Troy N. Moslemi, Flushing, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Song
27                                       Park, Senior Litigation Counsel;
28                                       Kimberly A. Burdge, 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 is

4    DENIED.

5        Petitioner Hong Hui Lin, a native and citizen of the

6    People’s Republic of China, seeks review of a June 29, 2015,

7    decision of the BIA, affirming a January 22, 2014, decision of

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

9    asylum, withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).       In re Hong Hui Lin, No. A87 791 509

11   (B.I.A. June 29, 2015), aff’g No. A87 791 509 (Immig. Ct. N.Y.

12   City Jan. 22, 2014).       We assume the parties’ familiarity with

13   the underlying facts and procedural history in this case.

14       Under the circumstances of this case, we review the IJ’s

15   decision as modified by the BIA.          Xue Hong Yang v. U.S. Dep’t

16   of Justice, 426 F.3d 520, 522 (2d Cir. 2005).         The applicable

17   standards   of    review     are   well    established.     8 U.S.C.

18   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

19   (2d Cir. 2008).

20       For asylum applications like Lin’s, governed by the REAL

21   ID Act, the agency may, “[c]onsidering the totality of the


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1    circumstances,”      base   a    credibility      finding    on   an   asylum

2    applicant’s     “demeanor,       candor,     or     responsiveness,”        the

3    plausibility    of   his    account,     and   inconsistencies         in   his

4    statements, “without regard to whether” they go “to the heart

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

6    Xia Lin, 534 F.3d at 163-64.             “We defer . . . to an IJ’s

7    credibility determination unless, from the totality of the

8    circumstances, it is plain that no reasonable fact-finder could

9    make such an adverse credibility ruling.”                  Id. at 167.       As

10   discussed below, substantial evidence supports the agency’s

11   adverse credibility determination.

12       The   agency     reasonably     relied     on    the    inconsistencies

13   concerning the circumstances under which Lin and his first

14   witness last saw each other in China.               Lin testified that he

15   met the witness for a 2:00 pm meal, which lasted two hours.                 Lin

16   was then confronted with his plane ticket for an 8:00 flight

17   to Shanghai that same day.         After a long pause, Lin responded

18   that his flight was scheduled for 8:00 am, but that it was

19   delayed until 4:00 pm.          The witness testified, however, that

20   he met Lin at 5:00 pm when it was dark.             The agency reasonably

21   found   Lin’s   explanation       both     inconsistent      with   his     own


                                          3
1    testimony and implausible because Lin had previously testified

2    that he took the day of work and went grocery shopping on the

3    day he met the witness.     See Majidi v. Gonzales, 430 F.3d 77,

4    80 (2d Cir. 2005) (“A petitioner must do more than offer a

5    plausible explanation for his inconsistent statements to secure

6    relief; he must demonstrate that a reasonable fact-finder would

7    be compelled to credit his testimony.” (internal quotation

8    marks and emphasis omitted)).

9        The agency also reasonably rested its adverse credibility

10   determination on inconsistencies between Lin and his second

11   witness’s testimony concerning Lin’s church attendance in the

12   United States.     Xiu Xia Lin, 534 F.3d at 166-67.   Lin testified

13   that, on the day before the hearing, he attended a 10:45 am

14   church service until 12:30 pm and that he saw the witness after

15   the service.     But the witness testified that she attended a

16   12:00 pm church service, saw Lin when she first walked in, and

17   that she left in the middle of the service at 1:00 pm.

18       Lin   argues    that   the   inconsistencies   concerning   his

19   U.S.-church attendance were minor and he should have been

20   confronted with them and given an opportunity to explain.       We

21   have held that “where the perceived incongruities in an asylum


                                       4
1    applicant’s testimony are not plainly obvious, an IJ cannot rely

2    on them to support an adverse credibility ruling without first

3    identifying the alleged inconsistencies for the applicant and

4    giving the applicant an opportunity to address them.”               Ming Shi

5    Xue v. BIA, 439 F.3d 111, 121 (2d Cir. 2006).               Although Lin may

6    be correct that certain inconsistencies concerning when he and

7    the    witness   first   met   were       “not    plainly    obvious,”    the

8    inconsistences concerning the church service, which supposedly

9    occurred the day before the hearing, were: Lin and Jin testified

10   that the service was at different times and that they saw each

11   other at different places.       The agency therefore did not err

12   in relying on the inconsistences about Lin’s attendance at the

13   church service.     Ming Shi Xue, 439 F.3d at 125.

14          The agency also did not err in concluding that Lin’s

15   corroborating evidence was insufficient to rehabilitate his

16   credibility.     See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

17   Cir.    2007)    (observing    that       an     applicant’s    failure    to

18   corroborate testimony may bear on credibility, either because

19   the absence of particular evidence is viewed as suspicious, or

20   because the absence of corroboration in general makes an

21   applicant unable to rehabilitate testimony already called into


                                           5
1    question).     The agency reasonably accorded Lin’s documents

2    from China limited weight because Lin testified that his mother

3    in Fujian Province sent them but the envelope reflected that

4    the documents were sent from Shen Zhen Province by a man that

5    Lin purportedly did not know.         See Xiao Ji Chen v. U.S. Dep’t

6    of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that the

7    weight accorded to evidence lies largely within the agency’s

8    discretion).      The agency also reasonably gave diminished

9    weight to the letters from Lin’s mother, friend, and church

10   official in China because they were unsworn, were prepared for

11   the purpose of litigation, and were from interested parties not

12   subject to cross examination.     See Matter of H-L-H- & Z-Y- Z-,

13   25 I. & N. Dec. 209, 215 (B.I.A. 2010) (agency can give little

14   weight to document drafted by interested witness not subject

15   to cross examination), rev’d on other grounds by Hui Lin Huang

16   v. Holder, 677 F.3d 130 (2d Cir. 2012).

17        Given the inconsistencies and the agency’s reasonable

18   treatment of Lin’s corroborating evidence, the totality of the

19   circumstances supports the credibility ruling.            Xiu Xia Lin,

20   534 F.3d at 167.     Because Lin’s claims for relief were based

21   on   the   same   factual   predicate,    the   adverse   credibility


                                       6
1    determination is dispositive of asylum, withholding of removal,

2    and CAT relief.   Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

3    2006).

4        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

11   34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk




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