Wenlei Li v. Holder , 550 F. App'x 36 ( 2014 )

10-1396 (L)
Li v. Holder
BIA
Schoppert, IJ
A088 372 099
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 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 6th day of January, two thousand fourteen.
PRESENT:
DENNIS JACOBS,
ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_______________________________________
WENLEI LI,
Petitioner,
v. 10-1396(L);
11-2890(Con)
ERIC H. HOLDER, JR., UNITED STATES NAC
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Thomas V. Massucci, New York, NY.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Carl H. McIntyre, Jr.,
Assistant Director; Dawn S. Conrad,
Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of these petitions for review of
two decisions of the Board of Immigration Appeals (“BIA”),
it is hereby ORDERED, ADJUDGED, AND DECREED, that the
petitions for review are DENIED.
Petitioner Wenlei Li, a native and citizen of the
People’s Republic of China, seeks review of a March 17,
2010, order of the BIA affirming the April 30, 2008,
decision of Immigration Judge (“IJ”) Douglas B. Schoppert,
pretermitting his asylum application as untimely and denying
his application for withholding of removal and relief under
the Convention Against Torture (“CAT”), and of a June 24,
2011, order of the BIA denying his motion to reopen. In re
Wenlei Li, No. A088 372 099 (B.I.A. Mar. 17, 2010), aff’g
No. A088 372 099 (Immig. Ct. N.Y. City Apr. 30, 2008); In re
Wenlei Li, No. A088 372 099 (B.I.A. June 24, 2011). We
assume the parties’ familiarity with the underlying facts
and procedural history of the case.
I. Original Proceedings
“When the BIA agrees with an IJ’s ultimate credibility
determination but emphasizes particular aspects of the IJ’s
reasoning, the Court reviews both the BIA’s and the IJ’s
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opinions, including those portions of the IJ’s
decision that the BIA did not explicitly discuss.” Dong Gao
v. BIA, 482 F.3d 122, 126 (2d Cir. 2007). The applicable
standards of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
(2d Cir. 2009).
As Li does not challenge the agency’s denial of asylum
based on his claim of past persecution or the agency’s
denial of withholding of removal or CAT relief, we review
only his challenge to the denial of asylum based on his
political activities in the United States. See Yeuqing
Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005)
(considering issues not sufficiently briefed on appeal to be
waived). Absent a presumption of past persecution, Li was
required to demonstrate that he subjectively fears
persecution and that this fear is objectively reasonable.
See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.
2004).
Li does not contend that there is a pattern or practice
of persecution against Chinese Democracy Party (“CDP”)
members, and argues only that he established that he would
be individually targeted for persecution based on his CDP
activities in the United States. The BIA reasonably found
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that Li failed to sufficiently demonstrate a possibility of
future persecution, based on his lack of credibility and his
failure to establish that the Chinese authorities were aware
or likely to become aware of his political activities in the
United States.
Substantial evidence supports the agency’s conclusion
that Li was not credible to the extent he claimed that
Chinese officials were aware of his CDP activities in the
United States and were seeking to punish him for those
activities. The IJ found, although Li testified that his
wife had been visited by Chinese authorities both at home
and at her place of work, her employer had threatened to
dismiss her, and the authorities had threatened to harm her
because of his CDP activities, the letter from Li’s wife
indicated only that the authorities had visited their home
looking for Li. Because the agency was entitled to rely on
any discrepancy to find Li not credible, the omissions in
Li’s wife’s letter support the adverse credibility
determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166-67 n.3 (2d Cir.
2008) (noting that inconsistencies and omissions are
“functionally equivalent”). Contrary to Li’s position, no
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reasonable fact-finder would be compelled to credit his
explanation that his wife omitted details because she was
afraid that the police would read the letter, as she
included details of the authorities’ visits to their home.
See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)
(holding that the agency need not credit an applicant’s
explanations for inconsistent testimony unless those
explanations would compel a reasonable fact-finder to do
so).
The adverse credibility determination is further
supported by the IJ’s finding related to Li’s demeanor, to
which we give particular deference. The IJ relied on Li’s
lack of responsiveness as reflected in the hearing
transcripts. See Li Hua Lin v. U.S. Dep’t of Justice, 453
F.3d 99, 109 (2d Cir. 2006) (“We can be [ ] more confident
in our review of observations about an applicant’s demeanor
where . . . they are supported by specific examples of
inconsistent testimony.”). Accordingly, considering the
totality of the circumstances—the omissions and the lack of
responsiveness—the agency’s credibility determination, with
regard to Li’s claim that Chinese authorities were aware of
his CDP activities, is supported by substantial evidence.
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Furthermore, the BIA reasonably found that Li failed to
establish that Chinese authorities were likely to become
aware of his CDP activities. See Hongsheng Leng v. Mukasey,
528 F.3d 135, 143 (2d Cir. 2008). As the BIA found, Li has
not alleged that Chinese authorities have identified him at
the demonstrations or that his name on articles he has
published on the Internet would enable the authorities to
identify him. See Jian Xing Huang v. INS, 421 F.3d 125, 129
(2d Cir. 2005) (holding that absent solid support in the
record for the petitioner’s assertion that he would be
subjected to persecution, his fear was “speculative at
best”). Thus, given the lack of credible testimony combined
with the lack of objective evidence of the Chinese
authorities’ awareness of his activities, Li fails to
establish that the agency erred in concluding that he did
not meet his burden in demonstrating eligibility for asylum.
II. Motion to Reopen
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.
2005) (per curiam). Where the BIA considers relevant
evidence of country conditions in evaluating a motion to
reopen, we review the BIA’s factual findings under the
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substantial evidence standard. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). Here, the BIA
did not abuse its discretion by denying Li’s motion to
reopen as untimely because it was filed nearly eight months
after his final order of removal. See 8 U.S.C.
§ 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2).
Li argues that his evidence in support of his motion to
reopen—a letter from his wife stating that she was
questioned by the Chinese authorities about Li’s membership
in the CDP and a summons from the authorities—demonstrated
changed county conditions, excusing his motion from the time
limits on motions to reopen. See 8 U.S.C.
§ 1229a(c)(7)(C)(ii). However, because the agency
reasonably found that Li’s previous testimony, that the
authorities were aware of his CDP membership, was not
credible, the BIA did not err by declining to credit his new
unauthenticated evidence repeating that same claim. See Qin
Wen Zheng v. Gonzales, 500 F.3d 143, 148 (2d Cir. 2007);
Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A]
single false document or a single instance of false
testimony may (if attributable to the petitioner) infect the
balance of the alien’s uncorroborated or unauthenticated
evidence.”).
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For the foregoing reasons, the petitions for review are
DENIED. As we have completed our review, the pending motion
for a stay of removal is DISMISSED as moot. The pending
request for oral argument 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
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