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. 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 **8 th**  **day of November, two thousand seventeen.** 4 5 **PRESENT:** 6 **RICHARD C. WESLEY,** 7 **DEBRA ANN LIVINGSTON,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **FENG LIN,** 13 Petitioner **,** 14 15 **v. 16-175** 16 **NAC** 17 **JEFFERSON B. SESSIONS III, UNITED** 18 **STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 222 1 **FOR PETITIONER:** Marta Bachynska, Law Offices of Yu & 2 Associates, PLLC, New York, NY. 3 4 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 5 Assistant Attorney General; Leslie 6 McKay, Senior Litigation Counsel; 7 Stefanie Notarino Hennes, Trial 8 Attorney, Office of Immigration 9 Litigation, United States 10 Department of Justice, Washington, 11 DC. 12 13 UPON DUE CONSIDERATION of this petition for review of a 14 Board of Immigration Appeals (“BIA”) decision, it is hereby 15 ORDERED, ADJUDGED, AND DECREED that the petition for review is 16

DENIED. 17 Petitioner Feng Lin, a native and citizen of the People’s 18 Republic of China, seeks review of a December 23, 2015, decision 19 of the BIA, affirming an April 23, 2014, decision of an 20 Immigration Judge (“IJ”) denying Lin’s application for asylum, 21 withholding of removal, and relief under the Convention Against 22 Torture (“CAT”). In re Feng Lin, No. A200 753 627 (B.I.A. Dec. 23 23, 2015), aff’g No. A200 753 627 (Immig. Ct. N.Y. City Apr. 24 23, 2014). We assume the parties’ familiarity with the 25 underlying facts and procedural history in this case. 26 Under the circumstances of this case, we have reviewed both 27 the IJ’s and the BIA’s opinions “for the sake of completeness.” 283 Wangchuck v. Dep’t of Homeland Sec. , 448 F.3d 524, 528 (2d Cir. 1 2006). The applicable standards of review are well 2 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 3 Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008). 4 The crux of Lin’s asylum claim is that he fears persecution 5 in China because he joined the China Democracy Party (“CDP”) 6 in the United States, and that the Chinese government is aware 7 of his CDP activity and will persecute him on that basis. To 8 establish asylum eligibility, Lin must show “that he 9 subjectively fears persecution” and that “his fear is 10 objectively reasonable.” Ramsameachire v. Ashcroft , 357 F.3d 11 169, 178 (2d Cir. 2004). “An asylum applicant can show a 12 well-founded fear of future persecution in two ways: (1) by 13 demonstrating that he or she ‘would be singled out individually 14 for persecution’ if returned, or (2) by proving the existence 15 of a ‘pattern or practice in [the] . . . country of 16 nationality . . . of persecution of a group of persons 17 similarly situated to the applicant’ and establishing his or 18 her ‘own inclusion in, and identification with, such group.’” 19 Y.C. v. Holder , 741 F.3d 324, 332 (2d Cir. 2013) (quoting 8 20 C.F.R. § 1208.13(b)(2)(iii)). The Chinese government’s 21 awareness of Lin’s CDP activities is, thus, key to Lin’s asylum 224 claim. See Hongsheng Leng v. Mukasey , 528 F.3d 135, 143 (2d 1 Cir. 2008). 2 At minimum, Lin was required to present credible testimony 3 that the Chinese government was or would become aware of his 4 political activities. If an “applicant’s testimony is 5 credible, is persuasive, and refers to specific facts 6 sufficient to demonstrate” that he is entitled to relief, such 7 testimony may be sufficient to meet the applicant’s burden of 8 proof. 8 U.S.C. § 1158(b)(1)(B)(ii). But an IJ weighs such 9 testimony with other evidence and may find corroboration is 10 needed for even credible testimony. Id . In cases like Lin’s 11 where an asylum claim is base d on pro-democracy activities in 12 the United States, a claim that “may be especially easy to 13 manufacture,” there is a strong need for “careful balancing of 14 legal factors—the alien’s credibility, the likelihood that the 15 Chinese government is aware of the applicant’s pro-democracy 16 beliefs, [and] evidence suggesting that the alien would be 17 targeted because of those beliefs . . . –as well as the 18 political and practical concerns” raised by these types of 19 claims. Y.C. , 741 F.2d at 338. 20 We conclude that the agency reasonably questioned Lin’s 21 credibility. The agency may, “[c]onsidering the totality of 225 the circumstances,” base a credibility finding on 1 inconsistencies and omissions in an applicant’s statements and 2 evidence. 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin , 534 3 F.3d at 163-64 & 166 n.3. “We defer . . . to an IJ’s credibility 4 determination unless, from the totality of the circumstances, 5 it is plain that no reasonable fact-finder could make such an 6 adverse credibility ruling.” Xiu Xia Lin , 534 F.3d at 167. 7 Here, Lin’s credibility was called into question by his failure 8 to amend his application to detail the alleged visit by 9 authorities, coupled with the omission from his father’s letter 10 of the date of the alleged visit, which rendered Lin unable to 11 demonstrate that the visit was tied to his CDP activities. 12 Lin’s most robust evidence that the Chinese government is 13 aware of his CDP activities was his testimony that, in November 14 2012, “Chinese officials . . . came to [his] home and 15 threatened [his parents].” Because Lin’s original asylum 16 application predated this alleged incident, the application 17 made no mention of it. However, Lin never amended that 18 application between the alleged visit in 2012 and his hearing 19 in 2014, notwithstanding that his attorney made evidentiary 20 submissions in January and October 2013, post-dating the 21 November 2012 incident. Thus, the operative application 226 omitted this key incident. Xiu Xia Lin , 534 F.3d at 166 n.3 1 (“An inconsistency and an omission are . . . functionally 2 equivalent.”). 3 Lin concedes that the omission is present but argues that 4 it is insufficient to support the adverse credibility 5 determination because the agency failed to consider the 6 totality of the circumstances. We disagree. This visit was 7 central to his alleged fear of persecution and thus his failure 8 to amend or provide sufficient detail infected all parts of his 9 claim, calling into question the extent of his CDP activity as 10 well as the Chinese government’s awareness of his activity. 11 Cf. Siewe v. Gonzales , 480 F.3d 160, 170 (2d Cir. 2007) (“[A] 12 single false document or a single instance of false testimony 13 may (if attributable to petitioner) infect the balance of the 14 alien’s uncorroborated or unauthenticated evidence.”); see 15 also Hongsheng Leng , 528 F.3d at 143. And, as the agency 16 correctly observed, Lin bore the burden of demonstrating his 17 eligibility for asylum and had ample time to amend his 18 application. See 8 U.S.C. § 1158(b)(1)(B)(i). 19 Finally, Lin argues that it was error for the IJ not to 20 confront him with this discrepancy. While it is true that an 21 IJ may not rest an adverse credibility finding on a non-dramatic 227 discrepancy without first putting a petitioner on notice and 1 offering an opportunity to explain it, see Ming Shi Xue v. BIA, 2 439 F.3d 111, 125 (2d Cir. 2006), the discrepancy in Lin’s case 3 went to the central issue: whether the Chinese government was 4 aware of his activities. See Hongsheng Leng , 528 F.3d at 143. 5 Accordingly, the IJ was not required to specifically request 6 an explanation. See Ming Shi Xue, 439 F.3d at 122 n.13. 7 Given Lin’s failure to amend or to provide a detailed 8 statement from his father about the central basis for his 9 alleged fear of persecution on account of his CDP activity, it 10 cannot be said “that no reasonable fact-finder” would question 11 his credibility. Xiu Xia Lin , 534 F.3d at 167. Accordingly, 12 given his questionable credibility and lack of reliable 13 corroboration, Lin did not meet his burden of proof for any 14 relief. See 8 U.S.C. § 1158(b)(1)(B)(ii); Y.C. , 741 F.3d at 15 333-34, 338; Paul v. Gonzales , 444 F.3d 148, 156-57 (2d Cir. 16 2006). 17 For the foregoing reasons, the petition for review is 18 DENIED. As we have completed our rev iew, any stay of removal 19 that the Court previously granted in this petition is VACATED, 20 and any pending motion for a stay of removal in this petition 21 is DISMISSED as moot. Any pending request for oral argument 228 in this petition is DENIED in accordance with Federal Rule of 1 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 2 34.1(b). 3
FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5