Li v. Lynch , 658 F. App'x 14 ( 2016 )

13-1940
Li v. Lynch
BIA
Vomacka, IJ
A087 433 083
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
16th day of August, two thousand sixteen.
PRESENT:
JOHN M. WALKER, JR.,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
WEN-WEN LI,
Petitioner,
v. 13-1940
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Sandra Cheng, New York, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal
Assistant Attorney General; Carl
McIntyre, Assistant Director;
Margaret A. O’Donnell, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
D.C.
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 Wen-Wen Li, a native and citizen of the People’s
Republic of China, seeks review of a May 3, 2013, decision of
the BIA affirming a July 22, 2011, decision of an Immigration
Judge (“IJ”) denying Li’s application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Wen-Wen Li, No. A087 433 083 (B.I.A. May 3,
2013), aff’g No. A087 433 083 (Immig. Ct. N.Y. City July 22,
2011). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
Under the circumstances of this case, we have reviewed the
IJ’s decision as supplemented and modified by the BIA. See Ming
Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006); Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well established. See 8 U.S.C.
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§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
Cir. 2009).
Li raises three challenges to the agency’s decision. He
disputes the adverse credibility determination, argues that the
agency failed to consider evidence of a pattern or practice of
persecution of Catholics, and asserts a due process claim based
on translation errors. We address the claims in turn.
First, substantial evidence supports the agency’s adverse
credibility determination regarding Li’s family planning
claim, which was based on inconsistencies between Li’s
testimony and his credible fear interview. 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
163-64 (2d Cir. 2008) (explaining that the agency may base a
credibility finding on inconsistencies in the record, “without
regard to whether” they go “to the heart of the . . . claim”).
The agency did not err in finding that the record of Li’s
credible fear interview had sufficient “hallmarks of
reliability” to be considered in assessing his credibility.
Ming Zhang v. Holder, 585 F.3d 715, 725 (2d Cir. 2009). The
record appeared to be a verbatim account of the interview; it
was conducted with the aid of a Mandarin interpreter, Li does
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not argue that he had trouble understanding the questions, and
he was asked questions that were “‘clearly designed to elicit
a potential basis for an asylum claim.’” Id. (quoting
Ramsameachire v. Ashcroft, 357 F.3d 169, 181 (2d Cir. 2004)).
This record and the hearing transcript reflect inconsistencies
in Li’s claim. He testified that his girlfriend learned that
she was pregnant when officials took her for a forced abortion,
but stated at the credible fear interview that she learned she
was pregnant a day earlier when she visited a doctor because
she was unwell. Li’s explanation that he did not make this
statement at the credible fear interview is not compelling.
See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005)
(explaining that the agency may decline to credit an applicant’s
explanation for inconsistencies, unless the explanation would
compel a reasonable fact-finder to credit the applicant’s
testimony); Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003)
(explaining that a petitioner “must demonstrate that a
reasonable fact-finder would be compelled to credit his
testimony”). The credible fear record reflects Li’s statement
that his girlfriend went to a doctor because she was not feeling
well and discovered her pregnancy. It also reflects that
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officials came to his girlfriend’s home the next day to take
her for an abortion. Li’s argument that the inconsistency
finding was based on a misunderstanding of his use of the words
“us” and “we” is unsupported by the record.
The adverse credibility determination is further supported
by an inconsistency between Li’s testimony and documentary
evidence. Li testified that he called his girlfriend many
times while he was in hiding, but his girlfriend’s letter states
that he “dared not” call her while he was in hiding. Li’s
explanation, that his girlfriend may have been afraid to include
their communication in her letter, is not compelling, given that
his girlfriend felt secure enough to write the letter. Majidi,
430 F.3d at 80-81. The BIA also was not required to accept the
new explanation Li provided on appeal (that he called his
girlfriend but she did not answer her phone) as it contradicted
his testimony that he had been in contact with her.
Additionally, the IJ did not err in finding that Li’s lack
of reliable corroborating evidence further undermined his
credibility. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
Cir. 2007). The agency reasonably gave diminished weight to
letters from Li’s family and girlfriend because they were from
5
interested parties not subject to cross-examination. See Y.C.
v. Holder, 741 F.3d 324, 334 (2d Cir. 2013).
Given the inconsistencies and lack of reliable
corroboration, substantial evidence supports the adverse
credibility determination, which is dispositive of Li’s claims
for asylum, withholding of removal, and CAT relief based on his
alleged violation of China’s family planning policies. See Xiu
Xia Lin, 534 F.3d at 167; Paul v. Gonzales, 444 F.3d 148, 155-57
(2d Cir. 2006).
Second, Li claims that he will be persecuted because of his
Catholic faith. Because Li does not contend that he was
persecuted on this basis in the past or would be personally
targeted for persecution, he must establish a pattern or
practice of persecution of Catholics. 8 C.F.R.
§ 1208.13(b)(2)(iii). Substantial evidence supports the
agency’s determination that he failed to meet his burden. See
Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). The
2011 State Department report on religious freedom notes
restrictions on the practice of religion, including arrests and
detention of religious leaders and adherents, but does not show
that this practice is “systemic or pervasive.” In re A-M-, 23
6
I. & N. Dec. 737, 741 (B.I.A. 2005); see Mufied v. Mukasey, 508
F.3d 88, 92 (2d Cir. 2007). The articles Li submitted focused
on harm to religious leaders rather than adherents, and did not
discuss any instances of persecution in Li’s native province
of Fujian. See Jian Hui Shao, 546 F.3d at 149–50, 159-60,
163-65 (upholding BIA’s analysis that where enforcement of a
policy varies by region, the applicant must show a localized
fear of persecution). Given the evidence that there are 50 to
70 million Christians in China, including 12 million Catholics,
the agency reasonably concluded that this evidence did not show
a pattern or practice of persecution. Santoso v. Holder, 580
F.3d 110, 112 (2d Cir. 2009) (holding that evidence of localized
religious violence was insufficient to show a pattern or
practice of persecution, particularly in a large country like
Indonesia). Because Li cannot satisfy his burden of proof for
asylum, he necessarily cannot meet his burden for withholding
of removal or CAT relief, which require a showing of a greater
likelihood of persecution or torture. Lecaj v. Holder, 616
F.3d 111, 119-20 (2d Cir. 2010).
Finally, Li argues that the agency denied him due process
due to translation problems. To succeed in this argument, Li
7
must establish both a due process violation and resulting
prejudice. See Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994).
Li’s allegation that a few grammatical errors prove that the
translator was incompetent is unfounded: he offers no evidence
to show that these errors actually exist. Further, he does not
identify how he was prejudiced by these alleged errors.
Therefore, his due process claim fails.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
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
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