Xia Lin v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [11-60578 Affirmed ] Judge: FPB , Judge: CES , Judge: SAH Mandate pull date is 09/10/2012 [11-60578]

Case: 11-60578

Document: 00511925115

Page: 1

Date Filed: 07/18/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-60578
Summary Calendar

July 18, 2012
Lyle W. Cayce
Clerk

XIA LIN,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 938 809

Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Xia Lin, a native and citizen of China, petitions for review of the denial of
her applications for asylum and withholding of removal. She argues that the
adverse credibility determination of the Immigration Judge (IJ) and the Board
of Immigration Appeals (BIA) was clearly erroneous; the inconsistency
concerning her birthplace was because when a woman marries in China, she
becomes part of her husband’s household; she had difficulty explaining herself
because she had only two years of elementary school education and is illiterate;
*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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she was confused and defensive because of the way she was being questioned;
and she did not know what information was required in the asylum application.
She contends that the inconsistencies were not substantial and cannot be used
as the sole basis for an adverse credibility determination. She argues that the
IJ based the adverse credibility finding on her personal opinion of Lin, rather
than record evidence.1
Lin has not shown that based on the totality of the circumstances, “it is
plain that no reasonable fact-finder could make such an adverse credibility
ruling.” Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2009) (internal quotation
marks and citation omitted). Under the REAL ID Act, the IJ may consider any
inconsistency or omission, whether major or minor, in determining whether an
applicant is credible if the totality of the circumstances establish that the
applicant is not credible. See id. at 538-39. Lin argues that the IJ erred in
basing the decision in part on her demeanor. However, this court may not
substitute its judgment for that of the BIA and IJ concerning Lin’s demeanor.
See id. at 537-38.
The IJ’s adverse credibility determination was not based on her personal
opinion of Lin, but rather was supported by substantial record evidence,
including Lin’s hesitant, confused, and nonresponsive demeanor when
questioned by the Department of Homeland Security and the court, as well as
numerous inconsistencies within her testimony and between her testimony and
the documentary evidence, her failure to explain the inconsistencies, and
omissions from her asylum application. The IJ found Lin’s testimony concerning
the following was inconsistent (1) her birthplace; (2) the date on which her
marriage was registered; (3) how she obtained her second child’s birth certificate;

1

Lin has failed to brief the determination by the IJ and the BIA that she was not
entitled to relief under the Convention Against Torture. Therefore, she has abandoned any
challenge to this ruling. See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004); Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).

2

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(4) where she lived after her second child was born; (5) her omission of her
sisters’ sterilization from her asylum application; (6) her failure to submit the
original birth certificates of her children, which were available; and (7) the
authenticity of the household registry. In view of these inconsistencies and
omissions, the evidence does not suggest that “no reasonable fact-finder could
make such an adverse credibility ruling” and thus does not compel a conclusion
that Lin’s testimony was credible.

See Wang, 569 F.3d at 538; Zhang v.

Gonzales, 432 F.3d 339, 344-45 (5th Cir. 2005).
PETITION DENIED.

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