     16-175
     Lin v. Sessions
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A200 753 627

                            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   8th day of November, two thousand seventeen.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            DEBRA ANN LIVINGSTON,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   FENG LIN,
14                     Petitioner,
15
16                     v.                                            16-175
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
 1
 2   FOR PETITIONER:            Marta Bachynska, Law Offices of Yu &
 3                              Associates, PLLC, New York, NY.
 4
 5   FOR RESPONDENT:            Benjamin C. Mizer, Principal Deputy
 6                              Assistant Attorney General; Leslie
 7                              McKay, Senior Litigation Counsel;
 8                              Stefanie Notarino Hennes, Trial
 9                              Attorney, Office of Immigration
10                              Litigation,      United      States
11                              Department of Justice, Washington,
12                              DC.
13

14       UPON DUE CONSIDERATION of this petition for review of a

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

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

17   DENIED.

18       Petitioner Feng Lin, a native and citizen of the People’s

19   Republic of China, seeks review of a December 23, 2015, decision

20   of the BIA, affirming an April 23, 2014, decision of an

21   Immigration Judge (“IJ”) denying Lin’s application for asylum,

22   withholding of removal, and relief under the Convention Against

23   Torture (“CAT”).   In re Feng Lin, No. A200 753 627 (B.I.A. Dec.

24   23, 2015), aff’g No. A200 753 627 (Immig. Ct. N.Y. City Apr.

25   23, 2014).    We assume the parties’ familiarity with the

26   underlying facts and procedural history in this case.

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

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


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

2    2006).       The    applicable     standards         of     review    are        well

3    established.       See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

4    Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

5         The crux of Lin’s asylum claim is that he fears persecution

6    in China because he joined the China Democracy Party (“CDP”)

7    in the United States, and that the Chinese government is aware

8    of his CDP activity and will persecute him on that basis.                         To

9    establish    asylum        eligibility,    Lin       must    show     “that        he

10   subjectively       fears    persecution”       and    that     “his       fear    is

11   objectively reasonable.”         Ramsameachire v. Ashcroft, 357 F.3d

12   169, 178 (2d Cir. 2004).           “An asylum applicant can show a

13   well-founded fear of future persecution in two ways: (1) by

14   demonstrating that he or she ‘would be singled out individually

15   for persecution’ if returned, or (2) by proving the existence

16   of   a   ‘pattern     or     practice     in     [the] . . . country              of

17   nationality . . . of         persecution       of    a    group      of   persons

18   similarly situated to the applicant’ and establishing his or

19   her ‘own inclusion in, and identification with, such group.’”

20   Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (quoting 8

21   C.F.R.   §   1208.13(b)(2)(iii)).          The       Chinese      government’s

22   awareness of Lin’s CDP activities is, thus, key to Lin’s asylum


                                          3
1    claim.    See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d

2    Cir. 2008).

3        At minimum, Lin was required to present credible testimony

4    that the Chinese government was or would become aware of his

5    political    activities.      If    an   “applicant’s    testimony     is

6    credible,    is    persuasive,     and   refers   to   specific    facts

7    sufficient to demonstrate” that he is entitled to relief, such

8    testimony may be sufficient to meet the applicant’s burden of

9    proof.    8 U.S.C. § 1158(b)(1)(B)(ii).       But an IJ weighs such

10   testimony with other evidence and may find corroboration is

11   needed for even credible testimony.         Id.   In cases like Lin’s

12   where an asylum claim is based on pro-democracy activities in

13   the United States, a claim that “may be especially easy to

14   manufacture,” there is a strong need for “careful balancing of

15   legal factors—the alien’s credibility, the likelihood that the

16   Chinese government is aware of the applicant’s pro-democracy

17   beliefs, [and] evidence suggesting that the alien would be

18   targeted    because   of   those   beliefs . . . –as     well     as   the

19   political and practical concerns” raised by these types of

20   claims.    Y.C., 741 F.2d at 338.

21       We conclude that the agency reasonably questioned Lin’s

22   credibility.      The agency may, “[c]onsidering the totality of


                                         4
1    the     circumstances,”     base       a   credibility   finding     on

2    inconsistencies and omissions in an applicant’s statements and

3    evidence.    8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534

4    F.3d at 163-64 & 166 n.3.    “We defer . . . to an IJ’s credibility

5    determination unless, from the totality of the circumstances,

6    it is plain that no reasonable fact-finder could make such an

7    adverse credibility ruling.”           Xiu Xia Lin, 534 F.3d at 167.

8    Here, Lin’s credibility was called into question by his failure

9    to amend his application to detail the alleged visit by

10   authorities, coupled with the omission from his father’s letter

11   of the date of the alleged visit, which rendered Lin unable to

12   demonstrate that the visit was tied to his CDP activities.

13         Lin’s most robust evidence that the Chinese government is

14   aware of his CDP activities was his testimony that, in November

15   2012,    “Chinese   officials . . . came        to   [his]   home   and

16   threatened [his parents].”         Because Lin’s original asylum

17   application predated this alleged incident, the application

18   made no mention of it.         However, Lin never amended that

19   application between the alleged visit in 2012 and his hearing

20   in 2014, notwithstanding that his attorney made evidentiary

21   submissions in January and October 2013, post-dating the

22   November 2012 incident.        Thus, the operative application


                                        5
1    omitted this key incident.        Xiu Xia Lin, 534 F.3d at 166 n.3

2    (“An inconsistency and an omission are . . . functionally

3    equivalent.”).

4         Lin concedes that the omission is present but argues that

5    it   is   insufficient     to   support    the   adverse    credibility

6    determination    because    the   agency   failed   to     consider   the

7    totality of the circumstances.         We disagree.      This visit was

8    central to his alleged fear of persecution and thus his failure

9    to amend or provide sufficient detail infected all parts of his

10   claim, calling into question the extent of his CDP activity as

11   well as the Chinese government’s awareness of his activity.

12   Cf. Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A]

13   single false document or a single instance of false testimony

14   may (if attributable to petitioner) infect the balance of the

15   alien’s uncorroborated or unauthenticated evidence.”); see

16   also Hongsheng Leng, 528 F.3d at 143.             And, as the agency

17   correctly observed, Lin bore the burden of demonstrating his

18   eligibility for asylum and had ample time to amend his

19   application.    See 8 U.S.C. § 1158(b)(1)(B)(i).

20        Finally, Lin argues that it was error for the IJ not to

21   confront him with this discrepancy.         While it is true that an

22   IJ may not rest an adverse credibility finding on a non-dramatic


                                        6
1    discrepancy without first putting a petitioner on notice and

2    offering an opportunity to explain it, see Ming Shi Xue v. BIA,

3    439 F.3d 111, 125 (2d Cir. 2006), the discrepancy in Lin’s case

4    went to the central issue: whether the Chinese government was

5    aware of his activities. See Hongsheng Leng, 528 F.3d at 143.

6    Accordingly, the IJ was not required to specifically request

7    an explanation.     See Ming Shi Xue, 439 F.3d at 122 n.13.

8        Given Lin’s failure to amend or to provide a detailed

9    statement from his father about the central basis for his

10   alleged fear of persecution on account of his CDP activity, it

11   cannot be said “that no reasonable fact-finder” would question

12   his credibility.     Xiu Xia Lin, 534 F.3d at 167.       Accordingly,

13   given    his   questionable   credibility   and   lack   of   reliable

14   corroboration, Lin did not meet his burden of proof for any

15   relief.    See 8 U.S.C. § 1158(b)(1)(B)(ii); Y.C., 741 F.3d at

16   333-34, 338; Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

17   2006).

18       For the foregoing reasons, the petition for review is

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

20   that the Court previously granted in this petition is VACATED,

21   and any pending motion for a stay of removal in this petition

22   is DISMISSED as moot.     Any pending request for oral argument


                                       7
1   in this petition is DENIED in accordance with Federal Rule of

2   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

3   34.1(b).

4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe, Clerk




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