     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




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