11-2698-ag

Li v. Holder

BIA

Weisel, IJ

A089 198 097

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

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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 Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 21st day of November, two thousand thirteen.

PRESENT:

JON O. NEWMAN,

REENA RAGGI,

PETER W. HALL,

Circuit Judges. 

_________________________________________

YING LI, AKA LIAN JI PIAO,

Petitioner, 

 v. 11-2698

 NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_________________________________________

 

FOR PETITIONER: Thomas V. Massucci, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney General;

Richard M. Evans, Assistant Director;

Benjamin J. Zeitlin, Trial Attorney,

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.

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

Republic of China, seeks review of a June 6, 2011, decision of

the BIA affirming the June 3, 2009, decision of Immigration

Judge (“IJ”) Robert D. Weisel denying her application for

asylum and withholding of removal. In re Ying Li, No. A089

198 097 (B.I.A. June 6, 2011), aff’g No. A089 198 097 (Immig.

Ct. N.Y. City June 3, 2009). We assume the parties’

familiarity with the underlying facts and procedural history

of the case.

Under the circumstances of this case, we have reviewed

both the IJ’s and the BIA’s opinions. See Jigme Wangchuck v.

DHS, 448 F.3d 524, 528 (2d Cir. 2006). The applicable

standards of review are well-established. See 8 U.S.C.

§ 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d

162, 165-66 (2d Cir. 2008)(per curiam). 

I. Adverse Credibility Determination/Past Persecution

For asylum applications, like Li’s, governed by the REAL

ID Act, the agency may, considering the totality of the

circumstances, base a credibility finding on an asylum

applicant’s demeanor, the plausibility of her account, and

inconsistencies in her or her witness’s statements, without

regard to whether they go “to the heart of the applicant’s

claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d

at 163-64. 

Substantial evidence supports the agency’s determination

that Li did not testify credibly regarding her claims that she

was imprisoned in China because she assisted North Korean

refugees. The agency reasonably relied on inconsistencies in

the record. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu

Xia Lin, 534 F.3d at 163-64, 166-67. As the agency noted,

Li’s testimony regarding the birth date of her daughter and

the length of her prison term in China was inconsistent with

her asylum application and statement in support. These

inconsistencies provide substantial support for the agency’s

adverse credibility determination. See 8 U.S.C.

§ 1158(b)(1)(B)(iii) (providing that the agency may base a

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credibility determination on inconsistencies between the

applicants statements, and “the consistency of such statements

with other evidence of record”). 

Li argues that the agency’s adverse credibility finding

was not supported by the record because the IJ did not give Li

sufficient opportunity to explain the inconsistencies. The

record, however, reflects that, during Li’s testimony, she was

questioned regarding each inconsistency identified by the

agency and given an opportunity to respond. Further, the

agency reasonably rejected Li’s explanations, as she failed to

explain either inconsistency. See Majidi v. Gonzales, 430

F.3d 77, 80-81 (2d Cir. 2005) (finding that an agency need not

credit an applicant’s explanations unless those explanations

would compel a reasonable fact-finder to do so).

Li argues that the agency erred in relying on her lack of

corroboration as a basis for its adverse credibility finding. 

However, an applicant’s failure to corroborate testimony may

bear on credibility, either because the absence of particular

corroborating evidence is viewed as suspicious, or “because

the absence of corroboration in general makes an applicant

unable to rehabilitate testimony that has already been called

into question.” See Biao Yang v. Gonzales, 496 F.3d 268, 273

(2d Cir. 2007). Thus, the agency reasonably concluded that,

in light of Li’s lack of credibility, her failure to offer

affidavits from her daughter or husband in support of her

claim that she was imprisoned in China further damaged her

credibility. Given the inconsistencies in the record and in

light of Li’s failure to corroborate her claims, the agency’s

adverse credibility determination regarding Li’s claim that

she suffered past persecution in China was supported by

substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); see

also Xiu Xia Lin, 534 F.3d at 163-64 (explaining that this

Court “defer[s] to an IJ’s credibility determination unless,

from the totality of the circumstances, it is plain that no

reasonable fact-finder could make such an adverse credibility

ruling”). 

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II. Burden of Proof/Well-Founded Fear of Future Persecution

Substantial evidence also supports the agency’s

conclusion that Li failed to demonstrate a well-founded fear

of future persecution. When an alien seeks relief on the

basis of activities that occurred in the United States, she

“must make some showing that authorities in h[er] country of

nationality are either aware of h[er] activities or likely to

become aware of h[er] activities.” Hongsheng Leng v. Mukasey,

528 F.3d 135, 143 (2d Cir. 2008)(per curiam). Although Li

offered evidence that she had participated in a human rights

organization in the United States, she offered no evidence

that the authorities in China were aware, or were likely to

become aware, of her activities in the United States. Absent

“solid support” in the record that her fear is objectively

reasonable, Li’s claim that she fears future persecution is

“speculative at best.” Jian Xing Huang v. U.S. INS, 421 F.3d

125, 129 (2d Cir. 2005)(per curiam). Accordingly, the agency

did not err in denying asylum and withholding of removal

insofar as those claims were based on her imprisonment in

China or her involvement in human rights organizations in the

United States. See Paul v. Gonzales, 444 F.3d 148, 156 (2d

Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, petitioner’s motion

for a stay of removal in this petition is DENIED 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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