16-3677 

Lin v. Sessions 

BIA 

Mulligan, IJ 

A073 037 199

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 

the Second Circuit, held at the Thurgood Marshall United States 

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

29th day of August, two thousand eighteen. 

PRESENT: 

RALPH K. WINTER,

ROSEMARY S. POOLER, 

 DEBRA ANN LIVINGSTON, 

 Circuit Judges. 

_____________________________________ 

CHENG LIN, 

 Petitioner, 

v. 16-3677 

 NAC 

JEFFERSON B. SESSIONS III, 

UNITED STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Gary J. Yerman, New York, NY. 

FOR RESPONDENT: Chad A. Readler, Acting Assistant 

Attorney General; John S. Hogan, 

Assistant Director; Robbin K. Blaya, 

Trial Attorney, Office of 

Immigration Litigation, United 

States Department of Justice, 

Washington, DC. 
2

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 Cheng Lin, a native and citizen of the People’s 

Republic of China, seeks review of an October 5, 2016, decision 

of the BIA affirming a January 20, 2015, decision of an 

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

withholding of removal, and relief under the Convention Against 

Torture (“CAT”). In re Cheng Lin, No. A 073 037 199 (B.I.A. Oct. 

5, 2016), aff’g No. A 073 037 199 (Immig. Ct. N.Y. City Jan. 20, 

2015). We assume the parties’ familiarity with the underlying 

facts and procedural history in this case. 

I. Timeliness 

An asylum application must be filed within one year of an 

applicant’s arrival in the United States or by April 1, 1997, 

whichever is later, absent changed or extraordinary 

circumstances. 8 U.S.C. § 1158(a)(2)(B), (D). Our 

jurisdiction to review the agency’s pretermission of asylum on 

timeliness grounds is limited to “constitutional claims or 

questions of law.” 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). 

Whether an applicant has raised a cognizable constitutional 

claim or question of law depends on “the nature of the argument
3

being advanced in the petition” because mere disagreement with 

the agency’s “fact-finding or exercise of discretion” will not 

suffice. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 

332 (2d Cir. 2006) (emphasis in original). 

Lin argues that the agency erred by not finding that 

ineffective assistance of counsel was an extraordinary 

circumstance that justified his late filing. The agency, 

however, assumed that counsel was ineffective, but held that 

Lin’s 17-year delay was unreasonable because Lin should have 

acted in 1996 when the travel agency told him to lie to the asylum 

officer or in 1997 when his employment authorization expired. 

Contrary to Lin’s argument, the agency addressed his lack of 

English or legal knowledge. Although a claim of ineffective 

assistance implicates due process, Lin’s arguments here pertain 

only to the correctness of the agency’s fact-finding regarding 

the reasonableness of his delay, which we lack jurisdiction to 

review. See Xiao Ji Chen, 471 F.3d at 332. 

II. Credibility 

Under the circumstances of this case, we have reviewed both 

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

Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). The agency 

may, “[c]onsidering the totality of the circumstances,” base 

a credibility finding on inconsistencies in an asylum 
4

applicant’s statements and other record evidence “without 

regard to whether” those inconsistencies go “to the heart of 

the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see 

also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008). 

“We defer . . . 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.” Xia Xia Lin, 534 F.3d at 167. Substantial evidence 

supports the agency’s determination that Lin was not credible 

as to his allegations of past persecution because Lin filed a 

false asylum application, repeated the false claim at an asylum 

interview, and admitted to lying under oath at that interview. 

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

instance of false testimony may . . . infect the balance of the 

alien’s uncorroborated or unauthenticated evidence.”). 

Lin argues that his circumstances merit “special 

consideration” and that his asylum interview should be treated 

with the heightened scrutiny given to airport interviews. 

Heightened scrutiny does not extend to asylum interviews. 

Diallo v. Gonzales, 445 F.3d 624, 632 (2d Cir. 2006). Airport 

interviews are viewed differently because they take place 

immediately after an alien arrives in the United States, 

generally before an applicant has counsel or is aware of the 
5

asylum process. Id. at 631-32. By contrast, Lin’s interview 

took place two years after he arrived in the United States, and 

he was represented by counsel, albeit unscrupulous counsel. 

Moreover, Lin admitted that he understood the meaning of taking 

an oath and the consequences of lying. Accordingly, we find 

no basis for special consideration. 

III. Future Persecution 

Though the agency found that Lin lacked credibility 

regarding his past persecution, it credited his testimony that 

he was a practicing Catholic. However, we find no error in the 

agency’s conclusion that Lin failed to meet his burden of 

proving that he would more likely than not be persecuted on that 

basis. To succeed on a claim for withholding of removal, the 

applicant must demonstrate that persecution is “more likely 

than not.” 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. 

§ 1208.16(b)(1)(iii); Hongsheng Leng v. Mukasey, 528 F.3d 135, 

140 (2d Cir. 2008). A fear of future persecution must be 

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

169, 178 (2d Cir. 2004), and have “solid support in the record,” 

Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005). 

The agency reasonably found that, while there were 

incidents of religious persecution, the evidence was 

insufficient to show that Lin would “more likely than not” 
6

suffer persecution. The evidence reflected a general policy 

of allowing family and friends to gather for private worship, 

showed that local authorities in some regions permitted 

unregistered churches while in other regions members of such 

churches were punished, and revealed that persecution was 

primarily carried out against church leaders, which Lin was not. 

Lin objects to the agency’s “cherry-picking” of evidence 

and points to parts of the State Department’s Religious Freedom 

Report that describe harassment and imprisonment of church 

members. The agency did not ignore this information; it 

explicitly considered it, but deemed it insufficient to meet 

Lin’s burden of showing that he would “more likely than not” 

be persecuted. We accord substantial deference to the agency’s 

“assessment of competing evidence.” Jian Hui Shao v. Mukasey, 

546 F.3d 138, 157 (2d Cir. 2008). 

Because Lin’s CAT claim is based on the same set of facts, 

the agency’s finding that he had not met his burden of proof 

for withholding of removal is dispositive of both forms of 

relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); 

Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d 

Cir. 2005). 

 For the foregoing reasons, the petition for review is 

DENIED. As we have completed our review, any stay of removal 
7

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