14-4606
    Li v. Lynch
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A099 375 885
                       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
    25th day of March, two thousand sixteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             DEBRA ANN LIVINGSTON,
             DENNY CHIN,
                  Circuit Judges.
    _____________________________________

    LIAN LI,
                  Petitioner,

                  v.                                                 14-4606
                                                                     NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Joan Xie, Law Office of Joan Xie,
                                         New York, N.Y.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Ernesto
                                         H. Molina, Jr., Assistant Director;
                                         Sabatino F. Leo, 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 Lian Li, a native and citizen of China, seeks

review of a December 9, 2014, decision of the BIA affirming a

December 17, 2012, 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 Lian Li, No. A099 375 885 (B.I.A. Dec. 9, 2014).       We assume

the   parties’   familiarity   with   the   underlying   facts   and

procedural history in this case.

      Ordinarily, where the BIA adopts the decision of the IJ,

we review the IJ’s decision directly.       Yang v. U.S. Dep’t of

Justice, 

, 522 (2d Cir. 2005).      Here, however, the

BIA rejected the IJ’s speculation regarding Li’s possible

motivations for undergoing abortion procedures. Accordingly,

we review “the judgment of the IJ as modified by the BIA’s

decision,” 

not consider the IJ’s speculation

regarding her motivation as part of the agency’s adverse

credibility determination.”     

standards of review are well established.

We review the IJ’s factual findings under the “substantial

evidence” standard and will uphold them “if they are supported
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by ‘reasonable, substantial and probative evidence in the

record.’” Weng v. Holder, 

, 513 (2d Cir. 2009)

(quoting Zhong v. U.S. Dep’t of Justice, 

, 116 (2d

Cir.2007)); see also 8 U.S.C. § 1252(b)(4)(B).

       Under the REAL ID Act of 2005, the agency may, in light of

“the    totality    of    the    circumstances,”          base   an    adverse

credibility determination on an asylum applicant’s “demeanor,

candor, or responsiveness,” the plausibility of her account,

and inconsistencies in her statements, “without regard to

whether”    those   inconsistencies         go    “to    the   heart   of   the

applicant’s     claim.”          8    U.S.C.      §§     1158(b)(1)(B)(iii),

1231(b)(3)(C); Xiu Xia Lin v. Mukasey, 

, 165 (2d

Cir. 2008).     Under the “substantial evidence” standard of

review, “[w]e 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.”       Xiu Xia 

.

       Here, we cannot conclude that the IJ’s adverse credibility

determination was unreasonable.              The IJ found that Li had

inflated the frequency of her participation in political

activities involving the Democratic Party of China National

Committee    (“DPCNC”).     In       both   her   testimony      and   amended

statement, Li described the democracy group’s routine work as

follows, giving the impression that she was involved in its
                             3
regular activities: “[W]e have two significant activities.

One is on every Saturday, and then we go to Manhattan Times

Square, and then we participate in the Jasmine movement.        And

then every month, second Tuesday, we go in front of the

consulate, and then we participate in the demonstration.”

However, her participation was limited to attending four

protests and authoring three online articles in January,

February, and June 2012, all of which occurred shortly after

she joined the DPCNC and right before she filed an amended

statement with the Immigration Court.       She moved to Florida

almost immediately after joining the group, and once she filed

the amended statement, her activities ceased.        Although her

exaggerations were not pervasive throughout her testimony, it

is not our task to assess “whether, if we were sitting as

fact-finders in the first instance, we would credit or discredit

an applicant’s testimony.”         Xiao Ji Chen v. U.S. Dep’t of

Justice, 

, 335 (2d Cir. 2006).     We cannot conclude

that the IJ’s credibility assessment in this instance was

unreasonable.

    The testimony of the general secretary of the democracy

group   further   supports   the    reasonableness   of   the   IJ’s

determination.    The IJ found the witness to be “unresponsive”

when asked about the connection between his organization and

the China Democracy Party, and that he was “interested in
                            4
avoiding a discussion of how his organization . . . had been

formed.”     The   general   secretary    acknowledged     that   the

organization encouraged members to publish        articles in the

member’s own name to make it “impossible” for them to return

to China.    The IJ inferred that the true reason for this

practice was to form the basis for an asylum claim. This

inference was not necessarily unreasonable.             See Siewe v.

Gonzales, 

, 168-69 (2d Cir. 2007) (providing

“speculation that inheres in inference is not ‘bald’ if the

inference is made available to the factfinder by record facts,

or even a single fact, viewed in the light of common sense and

ordinary experience”).

    The IJ found that Li did not otherwise rehabilitate her

testimony   with   corroborating    evidence.     “An    applicant’s

failure to corroborate his or her testimony may bear on

credibility, because the absence of corroboration in general

makes an applicant unable to rehabilitate testimony that has

already been called into question.”      Biao Yang v. Gonzales, 

, 273 (2d Cir. 2007).      Li testified that after moving

to Florida she returned to New York to participate in democracy

protests.   The IJ noted that Li failed to present documentary

evidence of that travel (plane or bus tickets).

    The IJ also found that Li could not corroborate her

allegations of forced abortions.      She testified that she was
                              5
fined for her pregnancy, but did not produce any other evidence

regarding the fine.   She also failed to submit a statement “from

any relative or close friend in China” to corroborate her forced

abortion claims.

      Although Li submitted a hospital certificate reflecting

her second abortion, the 1998 State Department Country Profile

of China states that “so-called ‘abortion certificates’” are

typically given to patients after a voluntary abortion.           See

Lin v. Gonzales, 

, 400 (2d Cir. 2006).       Consistent

with this report, it was not unreasonable for the IJ to find

it implausible that Li would have received the certificate for

an involuntary abortion.

      The IJ also found that Li’s demeanor weighed against her

credibility.   “[T]he IJ has the unique advantage among all

officials involved in the process of having heard directly from

the applicant,” and so we generally defer to findings of

demeanor.   Zhang v. INS, 

, 73–74 (2d Cir. 2004),

overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of

Justice, 

, 305 (2d Cir. 2007). Here, however, we

are not convinced that the IJ’s assessment of her demeanor is

particularly relevant to her overall credibility.            The IJ

described Li as “dry and low-key” when discussing her abortions

and   characterized   Li   as   “hesitant,   not   forthcoming,   and

evasive” when answering the Government’s questions about the
                              6
conduct that led to her disorderly conduct conviction involving

her work in a massage parlor.        Given the inherently personal

nature of this questioning, the described demeanor does not

strike us as abnormal.

     Nonetheless, under the totality of the circumstances, we

cannot conclude that the IJ’s credibility determination with

regards   to   Li’s   claims   of   forced   abortions   and   general

participation in activities with the DPCNC was unreasonable.

Accordingly, because the IJ credited her testimony about her

limited activities with the DPCNC, we must consider whether her

participation in the protests and authoring of online articles

establish that she would more likely than not be persecuted or

tortured in China.

     In the absence of evidence of past persecution, Li must

“make some showing that authorities in [her] country of

nationality are either aware of [her] activities or likely to

become aware of [her] activities.”       Hongsheng Leng v. Mukasey,

, 143 (2d Cir. 2008) (per curiam).       The likelihood

of a future event is a finding of fact, Hui Lin Huang v. Holder,

, 134 (2d Cir. 2012), which we review for substantial

evidence, Xiu Xia 

.

     Here, substantial evidence supports the agency’s finding

that Li did not show that officials in China are likely to become

aware of her political activities.       By her own account, those
                              7
activities were limited to four demonstrations and three

Internet articles.          We cannot conclude that the Chinese

government   is     aware   or   likely      to   become    aware     of    her

participation in the protests, or the articles Li authored

online. See Y.C. v. Holder, 

, 334 (2d Cir. 2013)

(“[Even assuming] that the Chinese government is aware of every

anti-Communist or pro-democracy piece of commentary published

online—which seems to us to be most unlikely—[an alien’s] claim

that the government would have discovered a single article

published on the Internet more than eight years ago is pure

speculation”).

    The objective evidence Li provided did not corroborate her

claim.    The 2011 Country Report on Human Rights described the

Chinese   government’s      efforts     to    crush   the    banned    China

Democratic Party and its leaders.            However, Li testified that

she belonged to a different organization, the DPCNC, which is

not expressly banned.            Even though the Court has never

suggested    that    “the    Chinese    government’s        banning    of       a

pro-democracy     organization     is   a    legal    prerequisite         to   a

successful asylum claim,” nor has our jurisprudence been

“intended to restrict the availability of asylum to members of

the CDP,” 

such a ban “may be probative of the

government’s awareness of that organization’s members and

activities,” 

provides no objective evidence that
                                 8
the Chinese government is aware of the activities of the DPCNC.

Moreover, Li did not claim to have any leadership role in the

organization, and presented no evidence that its members have

been targeted upon their return to China from the United States.

Accordingly, this record did not compel the agency to find that

it is more likely than not that Li will be persecuted if she

returns to China.    8 U.S.C. § 1252(b)(4)(B); Xiu Xia 

; 8 C.F.R. § 1208.16(b)(2).

    Because the agency reasonably found that Li failed to

demonstrate   past   persecution    or   a   likelihood   of   future

persecution, it did not err in denying both withholding of

removal and CAT relief, which were based on the same factual

predicate.    See Paul v. Gonzales, 

, 156–57 (2d Cir.

2006).

    For the foregoing reasons, the petition for review is

DENIED.

                              FOR THE COURT:
                              Catherine O=Hagan Wolfe, Clerk




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