     14-1800
     Li v. Lynch
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A099 531 331
                        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   24th day of June, two thousand fifteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   LING LI, AKA LI LING,
14            Petitioner,
15
16                 v.                                                14-1800
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,*
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Jan Potemkin, New York, New York.

     * 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. as Respondent.
1
2    FOR RESPONDENT:            Joyce R. Branda, Acting Assistant
3                               Attorney General; Leslie McKay,
4                               Assistant Director; Sara J. Bayram,
5                               Trial Attorney, Office of
6                               Immigration Litigation, United
7                               States Department of Justice,
8                               Washington, D.C.

9        UPON DUE CONSIDERATION of this petition for review of a

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

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

12   DENIED.

13       Petitioner Ling Li, a native and citizen of the People’s

14   Republic of China, seeks review of a May 6, 2014, decision of

15   the BIA affirming an August 29, 2012, decision of an Immigration

16   Judge (“IJ”) denying Li’s application for asylum, withholding

17   of removal, and relief under the Convention Against Torture

18   (“CAT”).   In re Ling Li, No. A099 531 331 (B.I.A. May 6, 2014),

19   aff’g No. A099 531 331 (Immig. Ct. N.Y. City Aug. 29, 2012).

20   We assume the parties’ familiarity with the underlying facts

21   and procedural history in this case.

22       Under the circumstances of this case, we have reviewed the

23   IJ’s decision, including the portions not explicitly discussed

24   by the BIA.   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d

                                    2
1    Cir. 2005).      The applicable standards of review are well

2    established.     See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

3    Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

4          For asylum applications governed by the REAL ID Act, such

5    as Li’s, the agency may, considering the totality of the

6    circumstances,       base   a   credibility       finding   on    an   asylum

7    applicant’s     “demeanor,        candor     or     responsiveness,”        the

8    plausibility    of    her   account,       and    inconsistencies      in   her

9    statements, without regard to whether they go “to the heart of

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

11   Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).               We “defer

12   to an IJ’s credibility finding unless, from the totality of the

13   circumstances, it is plain that no reasonable fact-finder could

14   make such an adverse credibility ruling.”             Xiu Xia Lin, 534 F.3d

15   at 167.

16         Substantial      evidence    supports        the   agency’s      adverse

17   credibility determination, which was based on inconsistencies

18   (1)   between   Li’s    testimony     and    her    previous     statements,

19   including her asylum application, her credible fear interview,

20   and her border interview; and (2) between her testimony and her

21   corroborating evidence.
                                          3
1           Li’s claim that she feared persecution because of her

2    practice of Christianity was found incredible because, while

3    she testified that she had never been in a church before November

4    2009 (and submitted a letter from her church in New York stating

5    that    she    began   attending    in      November    2009),   her   asylum

6    application was signed in September 2009 and stated that she

7    had begun to attend a Christian church.                She also submitted a

8    letter from her mother, dated October 2009, which said that Li

9    had told her she was attending a Christian church.                       Li’s

10   attempted explanations -- that she had heard of and was

11   interested in Christianity, possibly had gone to religious

12   events, or planned to go to church in the future-- do not compel

13   a reasonable fact-finder to credit her testimony.                 Majidi v.

14   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

15          Regarding her claim that she feared persecution at the

16   hands of her father, her testimony flatly contradicted her

17   border interview, at which she stated that she did not fear

18   persecution in China, but wanted to make money in the United

19   States and bring her parents to the country.              The record of the

20   border        interview   was      in       question-and-answer        format,

21   typewritten, and initialed by Li on each page.                   The border
                                             4
1    officer explained the purpose of the interview to her, said that

2    legal protection was available to persons who fear persecution

3    in her country, and asked her open-ended questions with the help

4    of   a   translator.    Accordingly,   the   interview   bears   the

5    “hallmarks of accuracy and reliability,” and the agency did not

 6   err in relying on it to find Li incredible.      Ramsameachire v.

 7   Ashcroft, 357 F.3d 169, 181 (2d Cir. 2004).

 8        Li’s claim on appeal that she is eligible for CAT relief

 9   based on her practice of Christianity is unexhausted, because

10   before the BIA her CAT claim rested on a different factual basis:

11   that she would be tortured for having exited China illegally.

12   The Government argues that we may not consider Li’s CAT claim

13   regarding Christianity because she failed to exhaust it.         We

14   agree.     See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,

15   107 n.1 (2d Cir. 2007).

16        Because the only threats to Li’s life or freedom depend upon

17   her credibility, the adverse credibility determination is

18   dispositive of her application for asylum and withholding of

19   removal.     Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

20   Accordingly, we need not consider the agency’s alternative

21   finding, that Li had not met her burden of proof even assuming
                                     5
1   her credibility.   See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)

2   (“As a general rule, courts and agencies are not required to

3   make findings on issues the decision of which is unnecessary

4   to the results they reach.”).

5       For the foregoing reasons, the petition for review is

6   DENIED.

7                                FOR THE COURT:
8                                Catherine O=Hagan Wolfe, Clerk




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