Feng Lin v. Sessions , 701 F. App'x 57 ( 2017 )


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  •      16-175
    Lin v. Sessions
    BIA
    Weisel, IJ
    A200 753 627
    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 November, two thousand seventeen.
    5
    6   PRESENT:
    7            RICHARD C. WESLEY,
    8            DEBRA ANN LIVINGSTON,
    9            SUSAN L. CARNEY,
    10                 Circuit Judges.
    11   _____________________________________
    12
    13   FENG LIN,
    14                     Petitioner,
    15
    16                     v.                                            16-175
    17                                                                   NAC
    18   JEFFERSON B. SESSIONS III, UNITED
    19   STATES ATTORNEY GENERAL,
    20            Respondent.
    21   _____________________________________
    22
    1
    2   FOR PETITIONER:            Marta Bachynska, Law Offices of Yu &
    3                              Associates, PLLC, New York, NY.
    4
    5   FOR RESPONDENT:            Benjamin C. Mizer, Principal Deputy
    6                              Assistant Attorney General; Leslie
    7                              McKay, Senior Litigation Counsel;
    8                              Stefanie Notarino Hennes, Trial
    9                              Attorney, Office of Immigration
    10                              Litigation,      United      States
    11                              Department of Justice, Washington,
    12                              DC.
    13
    14       UPON DUE CONSIDERATION of this petition for review of a
    15   Board of Immigration Appeals (“BIA”) decision, it is hereby
    16   ORDERED, ADJUDGED, AND DECREED that the petition for review is
    17   DENIED.
    18       Petitioner Feng Lin, a native and citizen of the People’s
    19   Republic of China, seeks review of a December 23, 2015, decision
    20   of the BIA, affirming an April 23, 2014, decision of an
    21   Immigration Judge (“IJ”) denying Lin’s application for asylum,
    22   withholding of removal, and relief under the Convention Against
    23   Torture (“CAT”).   In re Feng Lin, No. A200 753 627 (B.I.A. Dec.
    24   23, 2015), aff’g No. A200 753 627 (Immig. Ct. N.Y. City Apr.
    25   23, 2014).    We assume the parties’ familiarity with the
    26   underlying facts and procedural history in this case.
    27       Under the circumstances of this case, we have reviewed both
    28   the IJ’s and the BIA’s opinions “for the sake of completeness.”
    2
    1    Wangchuck v. Dep’t of Homeland Sec., 
    448 F.3d 524
    , 528 (2d Cir.
    2    2006).       The    applicable     standards         of     review    are        well
    3    established.       See 
    8 U.S.C. § 1252
    (b)(4)(B); Xiu Xia Lin v.
    4    Mukasey, 
    534 F.3d 162
    , 165-66 (2d Cir. 2008).
    5         The crux of Lin’s asylum claim is that he fears persecution
    6    in China because he joined the China Democracy Party (“CDP”)
    7    in the United States, and that the Chinese government is aware
    8    of his CDP activity and will persecute him on that basis.                         To
    9    establish    asylum        eligibility,    Lin       must    show     “that        he
    10   subjectively       fears    persecution”       and    that     “his       fear    is
    11   objectively reasonable.”         Ramsameachire v. Ashcroft, 
    357 F.3d 12
       169, 178 (2d Cir. 2004).           “An asylum applicant can show a
    13   well-founded fear of future persecution in two ways: (1) by
    14   demonstrating that he or she ‘would be singled out individually
    15   for persecution’ if returned, or (2) by proving the existence
    16   of   a   ‘pattern     or     practice     in     [the] . . . country              of
    17   nationality . . . of         persecution       of    a    group      of   persons
    18   similarly situated to the applicant’ and establishing his or
    19   her ‘own inclusion in, and identification with, such group.’”
    20   Y.C. v. Holder, 
    741 F.3d 324
    , 332 (2d Cir. 2013) (quoting 8
    
    21 C.F.R. § 1208.13
    (b)(2)(iii)).          The       Chinese      government’s
    22   awareness of Lin’s CDP activities is, thus, key to Lin’s asylum
    3
    1    claim.    See Hongsheng Leng v. Mukasey, 
    528 F.3d 135
    , 143 (2d
    2    Cir. 2008).
    3        At minimum, Lin was required to present credible testimony
    4    that the Chinese government was or would become aware of his
    5    political    activities.      If    an   “applicant’s    testimony     is
    6    credible,    is    persuasive,     and   refers   to   specific    facts
    7    sufficient to demonstrate” that he is entitled to relief, such
    8    testimony may be sufficient to meet the applicant’s burden of
    9    proof.    
    8 U.S.C. § 1158
    (b)(1)(B)(ii).       But an IJ weighs such
    10   testimony with other evidence and may find corroboration is
    11   needed for even credible testimony.         
    Id.
       In cases like Lin’s
    12   where an asylum claim is based on pro-democracy activities in
    13   the United States, a claim that “may be especially easy to
    14   manufacture,” there is a strong need for “careful balancing of
    15   legal factors—the alien’s credibility, the likelihood that the
    16   Chinese government is aware of the applicant’s pro-democracy
    17   beliefs, [and] evidence suggesting that the alien would be
    18   targeted    because   of   those   beliefs . . . –as     well     as   the
    19   political and practical concerns” raised by these types of
    20   claims.    Y.C., 741 F.2d at 338.
    21       We conclude that the agency reasonably questioned Lin’s
    22   credibility.      The agency may, “[c]onsidering the totality of
    4
    1    the     circumstances,”     base       a   credibility   finding     on
    2    inconsistencies and omissions in an applicant’s statements and
    3    evidence.    
    8 U.S.C. § 1158
    (b)(1)(B)(iii); see Xiu Xia Lin, 534
    4    F.3d at 163-64 & 166 n.3.    “We defer . . . to an IJ’s credibility
    5    determination unless, from the totality of the circumstances,
    6    it is plain that no reasonable fact-finder could make such an
    7    adverse credibility ruling.”           Xiu Xia Lin, 
    534 F.3d at 167
    .
    8    Here, Lin’s credibility was called into question by his failure
    9    to amend his application to detail the alleged visit by
    10   authorities, coupled with the omission from his father’s letter
    11   of the date of the alleged visit, which rendered Lin unable to
    12   demonstrate that the visit was tied to his CDP activities.
    13         Lin’s most robust evidence that the Chinese government is
    14   aware of his CDP activities was his testimony that, in November
    15   2012,    “Chinese   officials . . . came        to   [his]   home   and
    16   threatened [his parents].”         Because Lin’s original asylum
    17   application predated this alleged incident, the application
    18   made no mention of it.         However, Lin never amended that
    19   application between the alleged visit in 2012 and his hearing
    20   in 2014, notwithstanding that his attorney made evidentiary
    21   submissions in January and October 2013, post-dating the
    22   November 2012 incident.        Thus, the operative application
    5
    1    omitted this key incident.        Xiu Xia Lin, 
    534 F.3d at
    166 n.3
    2    (“An inconsistency and an omission are . . . functionally
    3    equivalent.”).
    4         Lin concedes that the omission is present but argues that
    5    it   is   insufficient     to   support    the   adverse    credibility
    6    determination    because    the   agency   failed   to     consider   the
    7    totality of the circumstances.         We disagree.      This visit was
    8    central to his alleged fear of persecution and thus his failure
    9    to amend or provide sufficient detail infected all parts of his
    10   claim, calling into question the extent of his CDP activity as
    11   well as the Chinese government’s awareness of his activity.
    12   Cf. Siewe v. Gonzales, 
    480 F.3d 160
    , 170 (2d Cir. 2007) (“[A]
    13   single false document or a single instance of false testimony
    14   may (if attributable to petitioner) infect the balance of the
    15   alien’s uncorroborated or unauthenticated evidence.”); see
    16   also Hongsheng Leng, 
    528 F.3d at 143
    .             And, as the agency
    17   correctly observed, Lin bore the burden of demonstrating his
    18   eligibility for asylum and had ample time to amend his
    19   application.    See 
    8 U.S.C. § 1158
    (b)(1)(B)(i).
    20        Finally, Lin argues that it was error for the IJ not to
    21   confront him with this discrepancy.         While it is true that an
    22   IJ may not rest an adverse credibility finding on a non-dramatic
    6
    1    discrepancy without first putting a petitioner on notice and
    2    offering an opportunity to explain it, see Ming Shi Xue v. BIA,
    3    
    439 F.3d 111
    , 125 (2d Cir. 2006), the discrepancy in Lin’s case
    4    went to the central issue: whether the Chinese government was
    5    aware of his activities. See Hongsheng Leng, 
    528 F.3d at 143
    .
    6    Accordingly, the IJ was not required to specifically request
    7    an explanation.     See Ming Shi Xue, 
    439 F.3d at
    122 n.13.
    8        Given Lin’s failure to amend or to provide a detailed
    9    statement from his father about the central basis for his
    10   alleged fear of persecution on account of his CDP activity, it
    11   cannot be said “that no reasonable fact-finder” would question
    12   his credibility.     Xiu Xia Lin, 
    534 F.3d at 167
    .       Accordingly,
    13   given    his   questionable   credibility   and   lack   of   reliable
    14   corroboration, Lin did not meet his burden of proof for any
    15   relief.    See 
    8 U.S.C. § 1158
    (b)(1)(B)(ii); Y.C., 741 F.3d at
    16   333-34, 338; Paul v. Gonzales, 
    444 F.3d 148
    , 156-57 (2d Cir.
    17   2006).
    18       For the foregoing reasons, the petition for review is
    19   DENIED.    As we have completed our review, any stay of removal
    20   that the Court previously granted in this petition is VACATED,
    21   and any pending motion for a stay of removal in this petition
    22   is DISMISSED as moot.     Any pending request for oral argument
    7
    1   in this petition is DENIED in accordance with Federal Rule of
    2   Appellate Procedure 34(a)(2), and Second Circuit Local Rule
    3   34.1(b).
    4                               FOR THE COURT:
    5                               Catherine O’Hagan Wolfe, Clerk
    8