     14-2592
     Lian v. Lynch
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A201 173 014

                          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   27th day of April, two thousand sixteen.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            DEBRA ANN LIVINGSTON,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   XIAO LING LIAN, AKA IVY WINGYIN
14   WONG,
15            Petitioner,
16
17                   v.                                              14-2592
18                                                                   NAC
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Joshua Bardavid, New York, New
25                                       York.
26
27   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
28                                       Assistant Attorney General; Linda S.
29                                       Wernery, Assistant Director; Janice
1                                  K. Redfern, Senior Litigation
2                                  Counsel, Office of Immigration
3                                  Litigation, United States
4                                  Department of Justice, Washington,
5                                  D.C.
6
7        UPON DUE CONSIDERATION of this petition for review of a

8    Board of Immigration Appeals (“BIA”) decision, it is hereby

9    ORDERED, ADJUDGED, AND DECREED that the petition for review is

10   DENIED.

11       Petitioner Xiao Ling Lian, a native and citizen of the

12   People’s Republic of China, seeks review of a June 26, 2014,

13   decision of the BIA affirming a May 8, 2013, decision of an

14   Immigration Judge (“IJ”) denying Lian’s application for asylum,

15   withholding of removal, and relief under the Convention Against

16   Torture (“CAT”).    In re Xiao Ling Lian, No. A201 173 014 (B.I.A.

17   June 26, 2014), aff’g No. A201 173 014 (Immig. Ct. N.Y. City

18   May 8, 2013).      We assume the parties’ familiarity with the

19   underlying facts and procedural history in this case.

20       Under the circumstances of this case, we have reviewed both

21   the IJ’s and the BIA’s opinions “for the sake of completeness.”

22   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

23   2006).    The    applicable    standards   of   review   are   well

24   established.    8 U.S.C. § 1252(b)(4)(B); see also Su Chun Hu v.

25   Holder, 579 F.3d 155, 158 (2d Cir. 2009).


                                      2
1    Past Persecution: Adverse Credibility Determination

2          The   agency     may,    “[c]onsidering     the     totality      of   the

3    circumstances,” base a credibility finding on, inter alia, an

4    asylum applicant’s demeanor, the plausibility of his account,

5    and inconsistencies in his statements and other record evidence

6    “without regard to whether” they go “to the heart of the

7    applicant’s claim.”           8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

8    Lin   v.    Mukasey,    534     F.3d    162,   163-64     (2d    Cir.    2008).

9    Substantial evidence supports the agency’s determination that

10   Lian was not credible.

11         The IJ reasonably relied on an inconsistency between Lian’s

12   hearing testimony and her airport interview in finding her not

13   credible.     See Ramsameachire v. Ashcroft, 357 F.3d 169, 179-80

14   (2d Cir. 2004).          As an initial matter, the BIA did not

15   impermissibly      assess      the     reliability   of    Lian’s       airport

16   interview in the first instance, but simply agreed with the IJ’s

17   findings     and     explained         its   reasons.           See   8 C.F.R.

18   § 1003.1(d)(3)(i) (“The Board will not engage in de novo review

19   of findings of fact determined by an immigration judge.                  Facts

20   determined by the immigration judge, . . . shall be reviewed

21   only to determine whether [they] . . . are clearly erroneous.”).

22   Moreover, the agency did not err in finding reliable the record


                                             3
1    of Lian’s interview, which was transcribed verbatim in question

2    and answer format, signed by Lian on each page, and conducted

3    with an interpreter.   See Ming Zhang v. Holder, 585 F.3d 715,

4    721-22 (2d Cir. 2009).

5        At her interview, Lian stated that she had never been

6    arrested in China.   However, in her asylum application and at

7    her hearing, she inconsistently stated that she had been

8    arrested and beaten in China on account of her religious

9    practice.    The agency was not compelled to accept Lian’s

10   explanation that she was nervous.   See Majidi v. Gonzales, 430

11   F.3d 77, 80 (2d Cir. 2005); see also Yun–Zui Guan v. Gonzales,

12   432 F.3d 391, 397 n.6 (2d Cir. 2005).

13       Having    questioned   Lian’s   credibility,   the   agency

14   reasonably relied further on her failure to rehabilitate her

15   testimony or independently satisfy her burden of proof with

16   reliable evidence corroborating her claim of past persecution.

17   See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

18   Given the inconsistency and lack of corroboration findings,

19   substantial evidence supports the agency’s determination that

20   Lian was not credible as to her claim of past persecution.   See

21   Xiu Xia Lin, 534 F.3d at 165-66.

22


                                    4
1    Well-Founded Fear of Persecution: Burden

2           Absent     past    persecution,           an    alien     may    establish

3    eligibility for asylum by demonstrating a well-founded fear of

4    future persecution, 8 C.F.R. § 1208.13(b)(2), which must be

5    both     subjectively      credible        and    objectively          reasonable,

6    Ramsameachire, 357 F.3d at 178.              To establish a well-founded

7    fear, an applicant must show either that he would be singled

8    out for persecution or that the country of removal has a pattern

9    or practice of persecuting those similarly situated to him.

10   8 C.F.R. § 1208.13(b)(2)(iii).              The agency was not compelled

11   to find that Lian established a well-founded fear of persecution

12   in China on account of her practice of Christianity.

13          As the IJ found, the country conditions evidence in the

14   record    provides       that   between     fifty       and    seventy       million

15   Christians practice in unregistered churches in China, and that

16   in some areas their activities, including proselytism, are

17   tolerated       without   interference.               Further,   the     proffered

18   evidence    did    not    suggest     greater         persecution       in    Lian’s

19   hometown.       Therefore, the agency did not err in determining

20   that Lian failed to demonstrate either that officials are likely

21   to discover her religious practice, see Hongsheng Leng v.

22   Mukasey, 528 F.3d 135, 142-43 (2d Cir. 2008), or that there


                                            5
1    exists    “systemic   or   pervasive”   persecution   of   similarly

2    situated Christians sufficient to demonstrate a pattern or

3    practice of persecution in China, In re A-M-, 23 I. & N. Dec.

4    737, 741 (B.I.A. 2005); see also Santoso v. Holder, 580 F.3d

5    110, 112 & n.1 (2d Cir. 2009).

6        Accordingly, because the agency reasonably found that Lian

7    failed to demonstrate a well-founded fear of persecution on

8    account of her practice of Christianity, it did not err in

9    denying asylum, withholding of removal, and CAT relief because

10   all three claims were based on the same factual predicate.      See

11   Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

12       For the foregoing reasons, the petition for review is

13   DENIED.    Any pending request for oral argument in this petition

14   is DENIED in accordance with Federal Rule of Appellate Procedure

15   34(a)(2), and Second Circuit Local Rule 34.1(b).

16                                   FOR THE COURT:
17                                   Catherine O=Hagan Wolfe, Clerk




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