Feng Lin v. Sessions

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