Liang Li Lin v. Holder , 388 F. App'x 59 ( 2010 )

09-2475-ag
Lin v. Holder
BIA
Weisel, IJ
A099 927 386
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
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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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 29 th day of July, two thousand ten.
PRESENT:
JOSÉ A. CABRANES,
ROBERT A. KATZMANN,
REENA RAGGI,
Circuit Judges.
LIANG LI LIN,
Petitioner,
v. 09-2475-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Oleh R. Tustaniwsky, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; Samia
Naseem, Of Counsel; Blair T.
O’Connor, 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.
Liang Li Lin, a native and citizen of the People’s
Republic of China, seeks review of a May 20, 2009 order of
the BIA affirming the July 24, 2007 decision of Immigration
Judge (“IJ”) Robert D. Weisel denying Lin’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Liang Li Lin, No.
A099 927 386 (B.I.A. May 20, 2009), aff’g No. A099 927 386
(Immig. Ct. N.Y. City July 24, 2007). Under the
circumstances of this case, we review the decision of the IJ
as supplemented by the BIA. See 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. § 1252(b)(4)(B);
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
In applying these standards, we assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Lin submits that the BIA erred in affirming (1) the
IJ’s adverse credibility determination and (2) the IJ’s
alternate finding that, even if credible, Lin failed to
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establish an objectively reasonable fear of persecution on
account of his alleged participation in the China Democracy
Party (“CDP”). We are not persuaded.
1. The Adverse Credibility Finding
Under the REAL ID Act, which applies to Lin’s
application for relief, “an IJ may rely on any inconsistency
or omission in making an adverse credibility determination
as long as the ‘totality of the circumstances’ establishes
that an asylum applicant is not credible.” Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (emphasis in
original) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)); see
Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007)
(holding that “the REAL ID Act no longer requires the trier
of fact to find a nexus between inconsistencies and the
‘heart of the claim’”). Here, the IJ reasonably found that
the discrepancy between Lin’s testimony and that of his
witness, Jowi, regarding when they last saw each other
warranted an adverse credibility finding. As the BIA noted,
Lin’s claim was based solely upon his activities with the
CDP in the United States, and the inconsistency related
“directly to the veracity of the claim for relief and the
circumstances surrounding the basis for [Lin’s]
application.” BIA Op. at 1.
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2. The Failure to Establish an Objectively Reasonable
Fear of Persecution
We also detect no error in the agency’s alternative
determination that Lin failed to establish an objectively
reasonable fear of persecution, even assuming his
credibility. 1 Lin testified that a photograph was taken of
him protesting outside the Chinese consulate but concedes
that he was not wearing a name tag or other identification
when the photograph was taken. He also submitted two
articles from the CDP website in which his name appears.
However, the affidavits Lin submitted from family members in
China do not indicate that the Chinese government is aware
of these articles or of Lin’s alleged CDP activities. On
this record, the agency’s conclusion that Lin failed to
establish an objectively reasonable fear of persecution was
reasonable. See Jian Xing Huang v. INS, 421 F.3d 125, 129
(2d Cir. 2005) (holding that absent solid record support,
claimed fear of persecution was “speculative at best”); see
also Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.
We decline to consider Lin’s unexhausted argument
1
that there is a pattern and practice of persecution of
CDP members in China. See 8 U.S.C. § 1252(d)(1); Lin
Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d
Cir. 2007).
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2008) (holding that to establish well-founded fear of
persecution absent evidence of past persecution alien must
show that authorities are aware or likely to become aware of
alien’s activities).
3. Withholding and CAT Relief
Because Lin was unable to establish the objective
likelihood of persecution required to meet his burden of
proof on his asylum claim, his withholding of removal and
CAT claims necessarily fail, as they were based on the same
factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156
(2d Cir. 2006).
4. Conclusion
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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