     14-8-ag
     Li v. Lynch

                          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 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 United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 5th day of October, two thousand fifteen.
 5
 6       PRESENT: RALPH K. WINTER,
 7                DENNIS JACOBS,
 8                PIERRE N. LEVAL,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       JUAN LI,
13                Petitioner,
14
15                    -v.-                                               14-8-ag
16
17       LORETTA E. LYNCH, United States
18       Attorney General,*
19                Respondent.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR PETITIONER:                       Lewis G. Hu, New York, New York.
23


                *
                 Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Loretta E. Lynch is automatically
         substituted for former Attorney General Eric H. Holder, Jr.
                                                  1
 1   FOR RESPONDENT:            Stuart F. Delery, Linda S.
 2                              Wernery, and Theodore C. Hirt,
 3                              Office of Immigration
 4                              Litigation, U.S. Department of
 5                              Justice, Washington, D.C.
 6
 7        Petition for review of a decision of the Board of
 8   Immigration Appeals.
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the petition is DENIED.
12
13        Petitioner Juan Li, a native and citizen of the
14   People’s Republic of China, petitions for review of a
15   December 12, 2013 decision of the Board of Immigration
16   Appeals (“BIA”) affirming a February 27, 2012 decision of an
17   Immigration Judge (“IJ”) denying Li’s application for
18   asylum, withholding of removal, and relief under the
19   Convention Against Torture (“CAT”). We assume the parties’
20   familiarity with the underlying facts, the procedural
21   history, and the issues presented for review.
22
23        To be eligible for asylum, an applicant must show past
24   persecution or a “a well-founded fear of [future]
25   persecution on account of race, religion, nationality,
26   membership in a particular social group, or political
27   opinion.” 8 U.S.C. §§ 1101(42), 1158(b). The applicant
28   bears the burden of proving eligibility; and under the REAL
29   ID Act of 2005,1 an applicant may be found not credible
30   based on “inconsistencies and omissions that are ‘collateral
31   or ancillary’ to [the] applicant’s claims.” Xiu Xia Lin v.
32   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); see 8 U.S.C.
33   § 1158(b)(1)(B)(iii).
34
35        An applicant is entitled to withholding of removal
36   under 8 U.S.C. § 1231(b)(3) if she shows that her “life or
37   freedom would be threatened in [the] country [to which she
38   would be removed] because of [her] race, religion,
39   nationality, membership in a particular social group, or
40   political opinion.” Where an asylum claim and a withholding
41   claim are “based on the very fact, or set of facts, that the
42   IJ found not to be credible,” the adverse credibility



         1
              The Real ID Act applies to cases (such as this)
     filed after May 11, 2005.
                                  2
 1   finding may be the basis for denying both claims.   Paul v.
 2   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).2
 3
 4        The IJ found that Li’s account of persecution was not
 5   credible, and the BIA affirmed in substantial part. Under
 6   the circumstances of this case, we review the IJ’s decision
 7   as modified by the BIA decision. See Xue Hong Yang v. U.S.
 8   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We
 9   review the IJ’s findings of fact for substantial evidence, 8
10   U.S.C. § 1252(b)(4)(B), and we defer “to an IJ’s credibility
11   determination unless, from the totality of the
12   circumstances, it is plain that no reasonable fact-finder
13   could make such an adverse credibility ruling,” Xiu Xia Lin,
14   534 F.3d at 167.
15
16        The evidence on which the IJ rested the adverse
17   credibility determination is thin, but sufficient in view of
18   the deference we must accord it. We cannot conclude that
19   “from the totality of the circumstances, it is plain that no
20   reasonable fact-finder could make such an adverse
21   credibility ruling,” id. Accordingly, and finding no merit
22   in Li’s other arguments, the petition for review is DENIED.
23   As we have completed our review, Li’s pending motion for a
24   stay of removal is DISMISSED as moot.
25
26                              FOR THE COURT:
27                              CATHERINE O’HAGAN WOLFE, CLERK
28
29
30




         2
              We decline to address Li’s CAT claim because it
     was not administratively exhausted. Li did not meaningfully
     address the claim in her BIA appeal. See Zhang v. Gonzales,
     426 F.3d 540, 541 n.1 (2d Cir. 2005). Sp. A. 2.
                                  3
