    09-2475-ag
    Lin v. Holder
                                                                                  BIA
                                                                             Weisel, IJ
                                                                          A099 927 386
                      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.


         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 29 th day of July, two thousand ten.

    PRESENT:
                    JOSÉ A. CABRANES,
                    ROBERT A. KATZMANN,
                    REENA RAGGI,
                           Circuit Judges.


    LIANG LI LIN,
             Petitioner,

                     v.                                    09-2475-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________


    FOR PETITIONER:               Oleh R. Tustaniwsky, New York, New
                                  York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General, Civil Division; Samia
                                  Naseem, Of Counsel; Blair T.
                                  O’Connor, Office of Immigration
                                  Litigation, United States Department
                                  of Justice, Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

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

is DENIED.

    Liang Li Lin, a native and citizen of the People’s

Republic of China, seeks review of a May 20, 2009 order of

the BIA affirming the July 24, 2007 decision of Immigration

Judge (“IJ”) Robert D. Weisel denying Lin’s application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”).       In re Liang Li Lin, No.

A099 927 386 (B.I.A. May 20, 2009), aff’g No. A099 927 386

(Immig. Ct. N.Y. City July 24, 2007).       Under the

circumstances of this case, we review the decision of the IJ

as supplemented by the BIA.     See Yan Chen v. Gonzales, 417

F.3d 268, 271 (2d Cir. 2005).       The applicable standards of

review are well-established.     See 8 U.S.C. § 1252(b)(4)(B);

Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

In applying these standards, we assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    Lin submits that the BIA erred in affirming (1) the

IJ’s adverse credibility determination and (2) the IJ’s

alternate finding that, even if credible, Lin failed to

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establish an objectively reasonable fear of persecution on

account of his alleged participation in the China Democracy

Party (“CDP”).   We are not persuaded.

    1.   The Adverse Credibility Finding

    Under the REAL ID Act, which applies to Lin’s

application for relief, “an IJ may rely on any inconsistency

or omission in making an adverse credibility determination

as long as the ‘totality of the circumstances’ establishes

that an asylum applicant is not credible.”    Xiu Xia Lin v.

Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (emphasis in

original) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)); see

Matter of J-Y-C-, 24 I. & N. Dec. 260, 265 (BIA 2007)

(holding that “the REAL ID Act no longer requires the trier

of fact to find a nexus between inconsistencies and the

‘heart of the claim’”).   Here, the IJ reasonably found that

the discrepancy between Lin’s testimony and that of his

witness, Jowi, regarding when they last saw each other

warranted an adverse credibility finding.    As the BIA noted,

Lin’s claim was based solely upon his activities with the

CDP in the United States, and the inconsistency related

“directly to the veracity of the claim for relief and the

circumstances surrounding the basis for [Lin’s]

application.” BIA Op. at 1.


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     2.       The Failure to Establish an Objectively Reasonable
              Fear of Persecution

     We also detect no error in the agency’s alternative

determination that Lin failed to establish an objectively

reasonable fear of persecution, even assuming his

credibility. 1     Lin testified that a photograph was taken of

him protesting outside the Chinese consulate but concedes

that he was not wearing a name tag or other identification

when the photograph was taken.        He also submitted two

articles from the CDP website in which his name appears.

However, the affidavits Lin submitted from family members in

China do not indicate that the Chinese government is aware

of these articles or of Lin’s alleged CDP activities.         On

this record, the agency’s conclusion that Lin failed to

establish an objectively reasonable fear of persecution was

reasonable.      See Jian Xing Huang v. INS, 421 F.3d 125, 129

(2d Cir. 2005) (holding that absent solid record support,

claimed fear of persecution was “speculative at best”); see

also Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.



        We decline to consider Lin’s unexhausted argument
          1

  that there is a pattern and practice of persecution of
  CDP members in China. See 8 U.S.C. § 1252(d)(1); Lin
  Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 124 (2d
  Cir. 2007).

                                  4
2008) (holding that to establish well-founded fear of

persecution absent evidence of past persecution alien must

show that authorities are aware or likely to become aware of

alien’s activities).

    3.    Withholding and CAT Relief

    Because Lin was unable to establish the objective

likelihood of persecution required to meet his burden of

proof on his asylum claim, his withholding of removal and

CAT claims necessarily fail, as they were based on the same

factual predicate.     See Paul v. Gonzales, 444 F.3d 148, 156

(2d Cir. 2006).

    4.    Conclusion

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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