Lin v. Sessions ( 2018 )

16-3677
Lin v. Sessions
BIA
Mulligan, IJ
A073 037 199
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
29th day of August, two thousand eighteen.
PRESENT:
RALPH K. WINTER,
ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
CHENG LIN,
Petitioner,
v. 16-3677
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; John S. Hogan,
Assistant Director; Robbin K. Blaya,
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 Cheng Lin, a native and citizen of the People’s
Republic of China, seeks review of an October 5, 2016, decision
of the BIA affirming a January 20, 2015, decision of an
Immigration Judge (“IJ”) denying Lin’s application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Cheng Lin, No. A 073 037 199 (B.I.A. Oct.
5, 2016), aff’g No. A 073 037 199 (Immig. Ct. N.Y. City Jan. 20,
2015). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
I. Timeliness
An asylum application must be filed within one year of an
applicant’s arrival in the United States or by April 1, 1997,
whichever is later, absent changed or extraordinary
circumstances. 8 U.S.C. § 1158(a)(2)(B), (D). Our
jurisdiction to review the agency’s pretermission of asylum on
timeliness grounds is limited to “constitutional claims or
questions of law.” 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).
Whether an applicant has raised a cognizable constitutional
claim or question of law depends on “the nature of the argument
2
being advanced in the petition” because mere disagreement with
the agency’s “fact-finding or exercise of discretion” will not
suffice. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
332 (2d Cir. 2006) (emphasis in original).
Lin argues that the agency erred by not finding that
ineffective assistance of counsel was an extraordinary
circumstance that justified his late filing. The agency,
however, assumed that counsel was ineffective, but held that
Lin’s 17-year delay was unreasonable because Lin should have
acted in 1996 when the travel agency told him to lie to the asylum
officer or in 1997 when his employment authorization expired.
Contrary to Lin’s argument, the agency addressed his lack of
English or legal knowledge. Although a claim of ineffective
assistance implicates due process, Lin’s arguments here pertain
only to the correctness of the agency’s fact-finding regarding
the reasonableness of his delay, which we lack jurisdiction to
review. See Xiao Ji Chen, 471 F.3d at 332.
II. Credibility
Under the circumstances of this case, we have reviewed both
the IJ’s and the BIA’s opinions “for the sake of completeness.”
Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). The agency
may, “[c]onsidering the totality of the circumstances,” base
a credibility finding on inconsistencies in an asylum
3
applicant’s statements and other record evidence “without
regard to whether” those inconsistencies go “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.” Xia Xia Lin, 534 F.3d at 167. Substantial evidence
supports the agency’s determination that Lin was not credible
as to his allegations of past persecution because Lin filed a
false asylum application, repeated the false claim at an asylum
interview, and admitted to lying under oath at that interview.
Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] single
instance of false testimony may . . . infect the balance of the
alien’s uncorroborated or unauthenticated evidence.”).
Lin argues that his circumstances merit “special
consideration” and that his asylum interview should be treated
with the heightened scrutiny given to airport interviews.
Heightened scrutiny does not extend to asylum interviews.
Diallo v. Gonzales, 445 F.3d 624, 632 (2d Cir. 2006). Airport
interviews are viewed differently because they take place
immediately after an alien arrives in the United States,
generally before an applicant has counsel or is aware of the
4
asylum process. Id. at 631-32. By contrast, Lin’s interview
took place two years after he arrived in the United States, and
he was represented by counsel, albeit unscrupulous counsel.
Moreover, Lin admitted that he understood the meaning of taking
an oath and the consequences of lying. Accordingly, we find
no basis for special consideration.
III. Future Persecution
Though the agency found that Lin lacked credibility
regarding his past persecution, it credited his testimony that
he was a practicing Catholic. However, we find no error in the
agency’s conclusion that Lin failed to meet his burden of
proving that he would more likely than not be persecuted on that
basis. To succeed on a claim for withholding of removal, the
applicant must demonstrate that persecution is “more likely
than not.” 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R.
§ 1208.16(b)(1)(iii); Hongsheng Leng v. Mukasey, 528 F.3d 135,
140 (2d Cir. 2008). A fear of future persecution must be
“objectively reasonable,” Ramsameachire v. Ashcroft, 357 F.3d
169, 178 (2d Cir. 2004), and have “solid support in the record,”
Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005).
The agency reasonably found that, while there were
incidents of religious persecution, the evidence was
insufficient to show that Lin would “more likely than not”
5
suffer persecution. The evidence reflected a general policy
of allowing family and friends to gather for private worship,
showed that local authorities in some regions permitted
unregistered churches while in other regions members of such
churches were punished, and revealed that persecution was
primarily carried out against church leaders, which Lin was not.
Lin objects to the agency’s “cherry-picking” of evidence
and points to parts of the State Department’s Religious Freedom
Report that describe harassment and imprisonment of church
members. The agency did not ignore this information; it
explicitly considered it, but deemed it insufficient to meet
Lin’s burden of showing that he would “more likely than not”
be persecuted. We accord substantial deference to the agency’s
“assessment of competing evidence.” Jian Hui Shao v. Mukasey,
546 F.3d 138, 157 (2d Cir. 2008).
Because Lin’s CAT claim is based on the same set of facts,
the agency’s finding that he had not met his burden of proof
for withholding of removal is dispositive of both forms of
relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006);
Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d
Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
6
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
7