Filed: May 31, 2018
Latest Update: Mar. 03, 2020
Summary: 17-155 Lin v. Sessions BIA Loprest, IJ A205 636 069 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 NOT
Summary: 17-155 Lin v. Sessions BIA Loprest, IJ A205 636 069 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 NOTA..
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17-155
Lin v. Sessions
BIA
Loprest, IJ
A205 636 069
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 31st day of May, two thousand eighteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 JIAN LIN,
14 Petitioner,
15
16 v. 17-155
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Cora J. Chang, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Anthony P.
27 Nicastro, Assistant Director; S.
28 Nicole Nardone, Trial Attorney,
29 Office of Immigration Litigation,
1 United States Department of
2 Justice, Washington, DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Jian Lin, a native and citizen of the People’s
9 Republic of China, seeks review of a December 28, 2016,
10 decision of the BIA affirming a December 2, 2015, decision of
11 an Immigration Judge (“IJ”) denying Lin’s application for
12 asylum, withholding of removal, and relief under the
13 Convention Against Torture (“CAT”). In re Jian Lin, No. A
14 205 636 069 (B.I.A. Dec. 28, 2016), aff’g No. A 205 636 069
15 (Immig. Ct. N.Y. City Dec. 2, 2015). We assume the parties’
16 familiarity with the underlying facts and procedural history
17 in this case.
18 Under the circumstances of this case, we have reviewed
19 the IJ’s decision as modified by the BIA. See Xue Hong Yang
20 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
21 The applicable standards of review are well established. See
2
1 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d
2 162, 165-66 (2d Cir. 2008).
3 I. Adverse Credibility
4 The agency may, “[c]onsidering the totality of the
5 circumstances,” base an adverse credibility ruling on an
6 applicant’s “demeanor, candor, or responsiveness,” the
7 consistency between the applicant’s oral and written
8 statements and other evidence of record, “or any other
9 relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer
10 . . . to an IJ’s credibility determination unless . . . it is
11 plain that no reasonable fact-finder could make such an
12 adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
13 Substantial evidence supports the agency’s determination
14 that Lin’s testimony regarding the events in China was not
15 credible. The agency reasonably relied on two omissions
16 related to the alleged raid of Lin’s underground church. Xiu
17 Xia
Lin, 534 F.3d at 166-67 & n.3 (“An inconsistency and an
18 omission are . . . functionally equivalent” for credibility
19 purposes). Lin testified repeatedly that the church was
20 physically destroyed during the raid, but his application
21 mentioned a raid, but not any damage to the church. Lin’s
3
1 explanation that he learned of the raid from a friend does
2 not resolve the omission because the same friend allegedly
3 told him the church had been destroyed. See Majidi v.
4 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
5 do more than offer a plausible explanation for his
6 inconsistent statements to secure relief; he must demonstrate
7 that a reasonable fact-finder would be compelled to credit
8 his testimony.” (quotation marks omitted)). Further, the
9 letter from Lin’s mother—the only evidence corroborating the
10 events in China—does not mention the church raid at all,
11 despite Lin testifying that his mother was aware of it. See
12 Xiu Xia
Lin, 534 F.3d at 167 (upholding agency’s reliance on
13 omissions in letters from applicant’s parent and friend).
14 The adverse credibility ruling is bolstered both by the
15 agency’s demeanor finding and the lack of corroborating
16 evidence. The record reflects Lin’s long pauses and
17 difficulty answering questions. See 8 U.S.C.
18 § 1158(b)(1)(B)(iii) (adverse credibility ruling may be based
19 on “demeanor, candor, or responsiveness”); Li Hua Lin v. U.S.
20 Dep’t of Justice,
453 F.3d 99, 109 (2d Cir. 2006) (granting
21 particular deference to credibility findings based on an
4
1 applicant’s demeanor). Lin’s corroborating evidence did not
2 rehabilitate his claim because, as noted above, his mother’s
3 letter omitted the church raid, and because he did not obtain
4 letters from the uncle he lived with while in hiding or the
5 church friend who informed him of the raid. See Biao Yang
6 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s
7 failure to corroborate his . . . testimony may bear on
8 credibility, because the absence of corroboration in general
9 makes an applicant unable to rehabilitate testimony that has
10 already been called into question.”). The agency was not
11 compelled to accept Lin’s explanation that he was afraid his
12 uncle would get in trouble because Lin could not explain why
13 his uncle would face greater danger than his mother. See 8
14 U.S.C. § 1252(b)(4) (“No court shall reverse a determination
15 made by a trier of fact with respect to the availability of
16 corroborating evidence . . . unless . . . a reasonable trier
17 of fact is compelled to conclude that such corroborating
18 evidence is unavailable.”);
Majidi, 430 F.3d at 80.
19 II. Well-founded Fear
20 Absent a credible claim of past persecution, Lin had the
21 burden to establish an objectively reasonable well-founded
5
1 fear of persecution based on his practice of Christianity in
2 the United States. See 8 C.F.R. § 1208.13(b)(1), (2)(iii);
3 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004);
4 see also Jian Xing Huang v. U.S. INS,
421 F.3d 125, 129 (2d
5 Cir. 2005) (holding that “[i]n the absence of solid support
6 in the record,” an asylum applicant’s fear of persecution is
7 “speculative at best”). Accordingly, Lin had to show either
8 (1) a reasonable possibility that he “would be singled out
9 individually for persecution” or (2) “a pattern or practice
10 . . . of persecution of a group of persons similarly situated
11 to [him].” Hongsheng Leng v. Mukasey,
528 F.3d 135, 142 (2d
12 Cir. 2008) (quotation marks and citation omitted); see 8
13 C.F.R. § 1208.13(b)(2)(iii). A pattern or practice of
14 persecution is the “systemic or pervasive” persecution of a
15 group. In re A-M-, 23 I. & N. Dec. 737, 741 (B.I.A. 2005);
16 see Santoso v. Holder,
580 F.3d 110, 111-12 & n.1 (2d Cir.
17 2009).
18 The agency reasonably concluded that Lin did not show
19 that the Chinese government was aware or likely to become
20 aware of his Christianity and to target him on this basis.
21 Hongsheng
Leng, 528 F.3d at 143. The letter from Lin’s mother
6
1 was properly discounted because it was authored by an
2 interested witness who was not available for cross
3 examination, and the agency reasonably concluded that any
4 fear of harm based on Lin’s online activity was speculative.
5 See Y.C. v. Holder, 741 F.3d 325, 334, 337 (2d Cir. 2013).
6 The agency considered the State Department’s reports and
7 acknowledged that some Christians, especially underground
8 church leaders, are subject to arrest, detention, and other
9 serious harm. However, given the evidence of variation in
10 treatment of Christians across provinces, the large number of
11 Christians who remain unharmed, and the government’s policy
12 of allowing friends and family to worship together without
13 registering, the agency reasonably concluded that Lin did not
14 establish “systemic or pervasive” persecution of Christians
15 who were similarly situated to him. See Santoso,
580 F.3d
16 at 111-12.
17 Because Lin did not meet his burden of proof for asylum,
18 he necessarily failed to meet the higher burdens for
19 withholding of removal and CAT relief, given that all three
20 claims were based on the same factual predicate. See Lecaj
21 v. Holder,
616 F.3d 111, 119-20 (2d Cir. 2010).
7
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe,
11 Clerk of Court
8
