15

‐ 219

‐ ag

Li v. Lynch



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2016

No. 15

‐ 219

‐ ag

L IANPING L I

,

Petitioner

,

v.

L ORETTA E. L YNCH

, U NITED S TATES A TTORNEY G ENERAL

, Respondent

.

On Petition for Review of an Order of

the Board of Immigration Appeals

A RGUED : S EPTEMBER 28, 2016

D ECIDED : O CTOBER 5, 20162 Before: W INTER

, C ABRANES

, Circuit Judges

, and R ESTANI

, Judge

. *

Petitioner Lianping Li, a native and citizen of China, seeks

review of a December 29, 2014 order of the Board of Immigration

Appeals affirming an August 16, 2013 decision of an Immigration

Judge denying Li’s application for asylum, withholding of removal,

and relief under the Convention Against Torture. On appeal,

petitioner argues that the agency erred by (1) relying on written notes

from her asylum interview in violation of her due process rights, (2)

finding her not credible as to her past persecution, and (3) finding

that she had not otherwise established a well

‐ founded fear of future

persecution. Because the petitioner has failed to exhaust her first

argument regarding the consideration of the asylum notes, we

decline to review the issue. Further, we find that although the

underlying analysis of the agency contained certain errors, its

ultimate ruling is supported by substantial evidence and the same

decision would be made on remand.

Accordingly, the petition for review is DENIED

. As we have

completed our review, any stay of removal 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.

* Judge Jane A. Restani, Judge for the United States Court of International

Trade, sitting by designation.3 G ARY J. Y ERMAN

, New York, N.Y., for

Petitioner

.

T HANKFUL T. V ANDERSTAR

, Attorney, Office

of Immigration Litigation (Benjamin C.

Mizer, Principal Deputy Assistant Attorney

General, Civil Division; Linda S. Wernery,

Assistant Director, on the brief ), U.S

Department of Justice, Washington, D.C., for

Respondent

.

P ER C URIAM :

Petitioner Lianping Li seeks review of an order of Immigration

Judge (“IJ”) Aviva L. Poczter denying her application for asylum,

withholding of removal, and relief under the Convention Against

Torture (“CAT”). The Board of Immigration Appeals (“BIA”) issued

a decision affirming the IJ. In re Lianping Li, No. A205 429 346 (B.I.A.

Dec. 29, 2014), aff’g No. A205 429 346 (Immig. Ct. N.Y. City Aug. 16,

2013). On appeal, Li argues that the BIA and IJ erred by (1) relying on

written notes from her asylum interview in violation of her due

process rights, (2) finding her not credible as to her past persecution,

and (3) finding that she had not established a well

‐ founded fear of

future persecution. We disagree and, accordingly, DENY the petition

for review.4 BACKGROUND

Petitioner is a native and citizen of the People’s Republic of

China who entered the United States on July 30, 2002 as a

nonimmigrant visitor with authorization to remain until January 29,

2003. Li remained in the United States without authorization and

filed an application for asylum, withholding of removal, and CAT

protection on May 7, 2012.

Li’s asylum application alleges the following. In 1996, Li

became pregnant with her second child in violation of China’s family

planning policy. Though she went into hiding, family planning

officials caught, detained, and beat her husband. Concerned for his

safety, Li turned herself in. Chinese officials then forced Li to

immediately undergo a forced abortion and subsequently levied a

heavy fine on both Li and her husband. Her husband died in 1997 as

a result of the beatings. Li then fled to the United States in 2002

where, in late 2011, she became involved with the China Democracy

Party (“CDP”) by “participating in many protests and propaganda

activities.” The application notes that Li “suffered many telephonic

interruptions” and threats from “the communist party’s spies.”

An asylum officer conducted a credible fear interview with Li

on June 14, 2012. The Department of Homeland Security (“DHS”)

commenced removal proceedings against the petitioner the next day

for overstaying her visa. At a hearing before the IJ on August 2, 2012,

Li conceded removability and proceeded with her asylum

application.5 The IJ admitted Li’s asylum application into evidence at a

hearing on August 9, 2013, during which Li testified in support of her

application. Among other things, Li testified that after she had

attended protests and published articles on the CDP website in her

own name, she received three phone calls from representatives of the

“Wenzhou People’s Association” who “threatened [her], and told

[her] not to join the Democracy Party because it would not be

permitted by the Chinese government.” During the hearing, the

Government confronted Li with notes taken by the asylum officer

during her credible fear interview. Li’s counsel did not object to the

admittance of these notes into evidence.

On August 16, 2013, the IJ issued an oral decision finding Li

removable and denying her application for asylum, withholding of

removal, and CAT relief. In particular, the IJ found Li lacking in

credibility based on several discrepancies in the evidence submitted.

Specifically, Li provided varying accounts of (1) whether she was

detained before her forced abortion; (2) when her husband was

released from custody; (3) the timeline of her forced abortion; (4)

whether she was forced to wear an intrauterine device (“IUD”); and

(5) the amount of money she and her husband were allegedly fined

as a result of her unauthorized pregnancy. The IJ found that Li’s

credibility issue “ble[d] over from [her] family planning claim into

the CDP claim.”

The IJ also found that Li failed to establish a well

‐ founded fear

of future persecution resulting from her CDP activities. First, the IJ

found no evidence indicating that Chinese officials were aware of6 Li’s activities in the United States. Li only presented her testimony

that she received the three phone calls from the Wenzhou People’s

Association. Yet, as the IJ noted, Li admitted no harm ever came to

her after receiving those phone calls. Second, the IJ further reasoned

that “according to the respondent’s own testimony, the Chinese

authorities know that the respondent joined the CDP, knows where

respondent is located, has the ability to contact her, and yet has not

taken any action against her or her family in China in the period of

over a year since the calls were received,” which “undercuts the

respondent’s claim that the Chinese government has any interest

whatsoever in harming her or her family.” Lastly, the IJ found no

pattern or practice of persecution against CDP members in China

similarly situated to Li.

On December 29, 2014, the BIA affirmed the IJ’s determination,

finding (1) no clear error in the IJ’s determination that Li did not

testify credibly about her past persecution resulting from China’s

family planning policies; and (2) that the IJ correctly determined that

Li failed to demonstrate a well

‐ founded fear of future persecution

based on her CDP activities. The BIA did not rely on the IJ’s adverse

credibility determination to rule on Li’s future persecution claim.

DISCUSSION

Ordinarily, we review only the BIA’s decision on a petition for

review. See Yang v. U.S. Dep’t of Justice

, 426 F.3d 520, 522 (2d Cir.

2005). Under the circumstances of this case, we review the IJ’s

decision as modified by the BIA. See id.7 We first address Li’s argument regarding the agency’s

consideration of her asylum officer’s handwritten notes. We then

turn to her challenge to the agency’s adverse credibility

determination regarding her past persecution. Lastly, we address Li’s

contention that the agency erred in its determination that she had not

established a well

‐ founded fear of future persecution.

I. Asylum Officer Notes

In her petition for review, Li argues for the first time that the

agency’s reliance on the notes of her credible fear interview violated

her due process rights. The Government challenges this argument as

unexhausted.

The Court may only review a final order of removal if “the

alien has exhausted all administrative remedies available to the alien

as of right.” 8 U.S.C. § 1252(d)(1). “[W]hen an applicant for asylum or

withholding of removal has failed to exhaust an issue before the BIA,

and that issue is, therefore, not addressed in a reasoned BIA decision,

we are, by virtue of the ‘final order’ requirement of § 1252(d)(1),

usually unable to review the argument.” Zhong v. U.S. Dep’t of Justice

,

480 F.3d 104, 122 (2d Cir. 2007). Although not jurisdictional, issue

exhaustion is mandatory and hence waivable by the Government. See

id. at 121–23.

Li did not object to the introduction of the credible fear

interview notes at her merits hearing and did not make a due process

argument in her brief to the BIA. Because the Government challenges8 the due process argument as unexhausted, we accordingly decline to

review it.

II. Past Persecution: Adverse Credibility

Li next challenges the IJ and BIA’s adverse credibility finding

on two grounds. First, she argues that the IJ and BIA incorrectly

found that she testified inconsistently regarding the amount of

money she was fined by Chinese family planning officials. Second,

she contends that omissions from her written asylum application

cannot be used to undermine her credibility.

The REAL ID Act directs the agency to make credibility

determinations in asylum proceedings based on the “totality of the

circumstances” and “all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii).

Among the factors bearing on credibility listed in the statute are

“demeanor, candor, or responsiveness,” the plausibility of the

petitioner’s account, and inconsistencies in the applicant’s

statements, “without regard to whether” they go “to the heart of the

applicant’s claim.” Id. We review the agency’s factual findings,

including adverse credibility determinations, under the substantial

evidence standard, treating them as “conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey

, 534

F.3d 162, 165 (2d Cir. 2008). We afford “particular deference” to an

IJ’s credibility determinations and defer to them “unless, from the

totality of the circumstances, it is plain that no reasonable fact

‐ finder9 could make such an adverse credibility ruling.” Id. at 166–67 (internal

quotation marks omitted).

When an IJ or BIA decision contains errors, “we may

nevertheless deem remand futile and deny the petition for review if

(1) substantial evidence in the record relied on by the IJ, considered

in the aggregate, supports the IJ’s finding that petitioner lacked

credibility, and (2) disregarding those aspects of the IJ’s reasoning

that are tainted by error, we can state with confidence that the IJ

would adhere to his decision were the petition remanded.” Siewe v.

Gonzales

, 480 F.3d 160, 166–67 (2d Cir. 2007) (internal quotation

marks omitted); see also Xiao Ji Chen v. U.S. Dep’t of Justice

, 471 F.3d

315, 338–39 (2d Cir. 2006) (discussing the role of futility within the

substantial evidence standard). The “overarching test” to deem a

remand futile “is when the reviewing court can confidently predict

that the agency would reach the same decision absent the errors that

were made.” Id. at 339 (internal quotation marks omitted). To

determine whether remand would be futile, a reviewing court

“should assess the entire record and determine whether, based on the

strength of the evidence supporting the error

‐ free findings and the

significance of those findings, it is clear that the agency would adhere

to its decision were the petition remanded.” Id. Accordingly, while

we may remand, we readily retain our ability to affirm an IJ’s factual

findings despite error. See id.

We agree with Li that the IJ and BIA erred in finding that she

testified inconsistently regarding the amount of money she was fined

by Chinese family planning officials. During her merits hearing, Li10 testified that she had paid 10,000 renminbi (“RMB”) and still owed

more than 10,000 RMB. She then clarified that the total amount of the

fine was 30,000 to 40,000 RMB. Similarly, the credible fear interview

notes reflect Li stating that she had paid 10,000 of a 30,000 RMB fine.

Li’s ambiguous testimony is thus plainly consistent with the asylum

officer’s notes.

Nonetheless, applying the well

‐ established standard of

substantial evidence to the facts of this case, we find that although

the underlying analysis of the IJ and BIA contained this error, the

agency’s ultimate ruling—that the petitioner failed to provide a

credible account of past persecution and thus failed to satisfy her

burden of proof—is supported by substantial evidence and it is clear

that the same decision would be made on remand. The agency cited

many far more significant inconsistencies among Li’s testimony,

written application, and credible fear interview, including several

related to the timing of her forced abortion, the detention of her

husband, and her forced use of an IUD. Given these numerous and

important inconsistencies, we are confident that remand would be

futile.

Li’s additional argument that her omissions cannot be used to

determine her credibility is meritless. While it is true, as Li states, that

“asylum applicants are not required to list every incident of

persecution on their I

‐ 589 statements,” Pavlova v. INS

, 441 F.3d 82, 90

(2d Cir. 2006), her asylum application did not simply omit incidents

of persecution. Rather, her application described the same incidents

of persecution differently.11 III. Future Persecution

Lastly, we turn to Li’s contention that she has established a

well

‐ founded fear of future persecution resulting from her CDP

activities. To establish asylum eligibility based on future persecution,

an applicant must show that he or she subjectively fears persecution

and that this fear is objectively reasonable. Ramsameachire v. Ashcroft

,

357 F.3d 169, 178 (2d Cir. 2004). The objective component requires the

alien to “make some showing that authorities in [her] country of

nationality are either aware of [her] activities or likely to become

aware of [her] activities.” Hongsheng Leng v. Mukasey

, 528 F.3d 135,

143 (2d Cir. 2008). Moreover, an asylum applicant need not provide

evidence that there is a reasonable possibility she will be singled out

for persecution if she “establishes that there is a pattern or practice in

his or her country of nationality

. . . of persecution of a group of

persons similarly situated to the applicant on account of race,

religion, nationality, membership in a particular social group, or

political opinion.” 8 C.F.R. § 1208.13(b)(2)(iii)(A).

We discern no error in the agency’s conclusion that Li failed to

show that her fear of future persecution resulting from her activities

with the CDP was objectively reasonable. Li only testified that after

she had attended protests and published articles on the CDP website

in her own name, she received three threatening phone calls from

representatives of the Wenzhou People’s Association. Li gave no

further details about these phone calls. The agency was thus justified

in finding that, absent more “solid support in the record” of an12 identifiable threat, Li’s fear of future persecution was “speculative at

best.” See Jian Xing Huang v. INS

, 421 F.3d 125, 129 (2d Cir. 2005).

The agency also reasonably rejected Li’s claim that China has a

pattern or practice of persecuting those similarly situated to her:

returning Chinese citizens who joined the CDP in the United States.

See 8 C.F.R. § 1208.13(b)(2)(iii)(A). Li’s application referred to CDP

members being arrested on their return to China, but she presented

no corroboration for that statement. Moreover, the 2012 State

Department Human Rights Report, cited by Li on appeal, describes

China’s punishment of several domestic political dissidents, none of

whom were similarly situated to Li.

Li argues that the agency incorrectly determined that the fact

that her family in China remained unharmed undermined her fear of

future persecution. Li contends that while a claim of future

persecution may be undercut by evidence that similarly situated

family members remain unharmed in their native country, see Melgar

de Torres v. Reno

, 191 F.3d 307, 313 (2d Cir. 1999), she never testified

that her family has joined the CDP or is otherwise politically active.

While we agree that the agency inappropriately relied on this fact,

remand would be futile given the dearth of evidentiary support for

an identifiable threat of future persecution. See Siewe

, 480 F.3d at 166–

67.

CONCLUSION

We have reviewed the other arguments raised by Li on appeal

and find them to be without merit. For the reasons stated above, the13 petition for review is DENIED. As we have completed our review,

any stay of removal 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.