14-2592 Lian v. Lynch BIA Hom, IJ A201 173 014 

### 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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **27 th**  **day of April, two thousand sixteen.** 4 5 **PRESENT:** 6 **RICHARD C. WESLEY,** 7 **DEBRA ANN LIVINGSTON,** 8 **DENNY CHIN,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **XIAO LING LIAN, AKA IVY WINGYIN** 13 **WONG,** 14 Petitioner **,** 15 16 **v. 14-2592** 17 **NAC** 18 **LORETTA E. LYNCH, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Joshua Bardavid, New York, New 24 York. 25 26 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 27 Assistant Attorney General; Linda S. 28 Wernery, Assistant Director; Janice 292 K. Redfern, Senior Litigation 1 Counsel, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 D.C. 5 6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review is 9

DENIED. 10 Petitioner Xiao Ling Lian, a native and citizen of the 11 People’s Republic of China, seeks review of a June 26, 2014, 12 decision of the BIA affirming a May 8, 2013, decision of an 13 Immigration Judge (“IJ”) denying Lian’s application for asylum, 14 withholding of removal, and relief under the Convention Against 15 Torture (“CAT”). In re Xiao Ling Lian, No. A201 173 014 (B.I.A. 16 June 26, 2014), aff’gNo. A201 173 014 (Immig. Ct. N.Y. City 17 May 8, 2013). We assume the parties’ familiarity with the 18 underlying facts and procedural history in this case. 19 Under the circumstances of this case, we have reviewed both 20 the IJ’s and the BIA’s opinions “for the sake of completeness.” 21 Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 22 2006). The applicable standards of review are well 23 established. 8 U.S.C. § 1252(b)(4)(B); see also Su Chun Hu v. 24 Holder , 579 F.3d 155, 158 (2d Cir. 2009). 253 Past Persecution: Adverse Credibility Determination 1 The agency may, “[c]onsidering the totality of the 2 circumstances,” base a credibility finding on, inter alia, an 3 asylum applicant’s demeanor, the plausibility of his account, 4 and inconsistencies in his statements and other record evidence 5 “without regard to whether” they go “to the heart of the 6 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 7 Lin v. Mukasey , 534 F.3d 162, 163-64 (2d Cir. 2008). 8 Substantial evidence supports the agency’s determination that 9 Lian was not credible. 10 The IJ reasonably relied on an inconsistency between Lian’s 11 hearing testimony and her airport interview in finding her not 12 credible. See Ramsameachire v. Ashcroft , 357 F.3d 169, 179-80 13 (2d Cir. 2004). As an initial matter, the BIA did not 14 impermissibly assess the reliability of Lian’s airport 15 interview in the first instance, but simply agreed with the IJ’s 16 findings and explained its reasons. See 8 C.F.R. 17 § 1003.1(d)(3)(i) (“The Board will not engage in de novo review 18 of findings of fact determined by an immigration judge. Facts 19 determined by the immigration judge, . . . shall be reviewed 20 only to determine whether [they] . . . are clearly erroneous.”). 21 Moreover, the agency did not err in finding reliable the record 224 of Lian’s interview, which was transcribed verbatim in question 1 and answer format, signed by Lian on each page, and conducted 2 with an interpreter. See Ming Zhang v. Holder , 585 F.3d 715, 3 721-22 (2d Cir. 2009). 4 At her interview, Lian stated that she had never been 5 arrested in China. However, in her asylum application and at 6 her hearing, she inconsistently stated that she had been 7 arrested and beaten in China on account of her religious 8 practice. The agency was not compelled to accept Lian’s 9 explanation that she was nervous. See Majidi v. Gonzales , 430 10 F.3d 77, 80 (2d Cir. 2005) ; see also Yun–Zui Guan v. Gonzales , 11 432 F.3d 391, 397 n.6 (2d Cir. 2005). 12 Having questioned Lian’s credibility, the agency 13 reasonably relied further on her failure to rehabilitate her 14 testimony or independently satisfy her burden of proof with 15 reliable evidence corroborating her claim of past persecution. 16
See Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). 17 Given the inconsistency and lack of corroboration findings, 18 substantial evidence supports the agency’s determination that 19 Lian was not credible as to her claim of past persecution. See 20 Xiu Xia Lin , 534 F.3d at 165-66. 21
225 Well-Founded Fear of Persecution: Burden 1 Absent past persecution, an alien may establish 2 eligibility for asylum by demonstrating a well-founded fear of 3 future persecution, 8 C.F.R. § 1208.13(b)(2), which must be 4 both subjectively credible and objectively reasonable, 5 Ramsameachire , 357 F.3d at 178. To establish a well-founded 6 fear, an applicant must show either that he would be singled 7 out for persecution or that the country of removal has a pattern 8 or practice of persecuting those similarly situated to him. 9 8 C.F.R. § 1208.13(b)(2)(iii). The agency was not compelled 10

to find that Lian established a well-founded fear of persecution 11 in China on account of her practice of Christianity. 12 As the IJ found, the country conditions evidence in the 13 record provides that between fifty and seventy million 14 Christians practice in unregistered churches in China, and that 15 in some areas their activities, including proselytism, are 16 tolerated without interference. Further, the proffered 17 evidence did not suggest greater persecution in Lian’s 18 hometown. Therefore, the agency did not err in determining 19 that Lian failed to demonstrate either that officials are likely 20 to discover her religious practice, see Hongsheng Leng v. 21 Mukasey , 528 F.3d 135, 142-43 (2d Cir. 2008), or that there 226 exists “systemic or pervasive” persecution of similarly 1 situated Christians sufficient to demonstrate a pattern or 2 practice of persecution in China, In re A-M- , 23 I. & N. Dec. 3 737, 741 (B.I.A. 2005); see also Santoso v. Holder , 580 F.3d 4 110, 112 & n.1 (2d Cir. 2009). 5 Accordingly, because the agency reasonably found that Lian 6 failed to demonstrate a well-founded fear of persecution on 7 account of her practice of Christianity, it did not err in 8 denying asylum, withholding of removal, and CAT relief because 9 all three claims were based on the same factual predicate. See 10 Paul v. Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). 11 For the foregoing reasons, the petition for review is 12 DENIED. Any pending request for oral argument in this petition 13 is DENIED in accordance with Federal Rule of Appellate Procedure 14 34(a)(2), and Second Circuit Local Rule 34.1(b). 15
FOR THE COURT: 16 Catherine O = Hagan Wolfe, Clerk 17