17-155 Lin v. Sessions BIA Loprest, IJ A205 636 069 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.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 31st day of May, two thousand eighteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 JOSÉ A. CABRANES, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 JIAN LIN, 14 Petitioner, 15 16 v. 17-155 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Cora J. Chang, New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Anthony P. 27 Nicastro, Assistant Director; S. 28 Nicole Nardone, Trial Attorney, 29 Office of Immigration Litigation, 1 United States Department of 2 Justice, Washington, DC. 3 4 UPON DUE CONSIDERATION of this petition for review of a

5 Board of Immigration Appeals (“BIA”) decision, it is hereby

6 ORDERED, ADJUDGED, AND DECREED that the petition for review

7 is DENIED.

8 Petitioner Jian Lin, a native and citizen of the People’s

9 Republic of China, seeks review of a December 28, 2016,

10 decision of the BIA affirming a December 2, 2015, decision of

11 an Immigration Judge (“IJ”) denying Lin’s application for

12 asylum, withholding of removal, and relief under the

13 Convention Against Torture (“CAT”). In re Jian Lin, No. A

14 205 636 069 (B.I.A. Dec. 28, 2016), aff’g No. A 205 636 069

15 (Immig. Ct. N.Y. City Dec. 2, 2015). We assume the parties’

16 familiarity with the underlying facts and procedural history

17 in this case.

18 Under the circumstances of this case, we have reviewed

19 the IJ’s decision as modified by the BIA. See Xue Hong Yang

20 v. U.S. Dep’t of Justice,

(2d Cir. 2005).

21 The applicable standards of review are well established. See

2 1

(b)(4)(B); Xiu Xia Lin v. Mukasey,

(2d Cir. 2008).

3 I. Adverse Credibility

4 The agency may, “[c]onsidering the totality of the

5 circumstances,” base an adverse credibility ruling on an

6 applicant’s “demeanor, candor, or responsiveness,” the

7 consistency between the applicant’s oral and written

8 statements and other evidence of record, “or any other

9 relevant factor.”

(b)(1)(B)(iii). “We defer

10 . . . to an IJ’s credibility determination unless . . . it is

11 plain that no reasonable fact-finder could make such an

12 adverse credibility ruling.” Xiu Xia Lin,

.

13 Substantial evidence supports the agency’s determination

14 that Lin’s testimony regarding the events in China was not

15 credible. The agency reasonably relied on two omissions

16 related to the alleged raid of Lin’s underground church. Xiu

17 Xia Lin,

-67 & n.3 (“An inconsistency and an

18 omission are . . . functionally equivalent” for credibility

19 purposes). Lin testified repeatedly that the church was

20 physically destroyed during the raid, but his application

21 mentioned a raid, but not any damage to the church. Lin’s 3 1 explanation that he learned of the raid from a friend does

2 not resolve the omission because the same friend allegedly

3 told him the church had been destroyed. See Majidi v.

4 Gonzales,

(2d Cir. 2005) (“A petitioner must

5 do more than offer a plausible explanation for his

6 inconsistent statements to secure relief; he must demonstrate

7 that a reasonable fact-finder would be compelled to credit

8 his testimony.” (quotation marks omitted)). Further, the

9 letter from Lin’s mother—the only evidence corroborating the

10 events in China—does not mention the church raid at all,

11 despite Lin testifying that his mother was aware of it. See

12 Xiu Xia Lin,

(upholding agency’s reliance on

13 omissions in letters from applicant’s parent and friend).

14 The adverse credibility ruling is bolstered both by the

15 agency’s demeanor finding and the lack of corroborating

16 evidence. The record reflects Lin’s long pauses and

17 difficulty answering questions. See 8 U.S.C.

18 § 1158(b)(1)(B)(iii) (adverse credibility ruling may be based

19 on “demeanor, candor, or responsiveness”); Li Hua Lin v. U.S.

20 Dep’t of Justice,

(2d Cir. 2006) (granting

21 particular deference to credibility findings based on an 4 1 applicant’s demeanor). Lin’s corroborating evidence did not

2 rehabilitate his claim because, as noted above, his mother’s

3 letter omitted the church raid, and because he did not obtain

4 letters from the uncle he lived with while in hiding or the

5 church friend who informed him of the raid. See Biao Yang

6 v. Gonzales,

(2d Cir. 2007) (“An applicant’s

7 failure to corroborate his . . . testimony may bear on

8 credibility, because the absence of corroboration in general

9 makes an applicant unable to rehabilitate testimony that has

10 already been called into question.”). The agency was not

11 compelled to accept Lin’s explanation that he was afraid his

12 uncle would get in trouble because Lin could not explain why

13 his uncle would face greater danger than his mother. See 8

(b)(4) (“No court shall reverse a determination

15 made by a trier of fact with respect to the availability of

16 corroborating evidence . . . unless . . . a reasonable trier

17 of fact is compelled to conclude that such corroborating

18 evidence is unavailable.”); Majidi,

.

19 II. Well-founded Fear

20 Absent a credible claim of past persecution, Lin had the

21 burden to establish an objectively reasonable well-founded 5 1 fear of persecution based on his practice of Christianity in

2 the United States. See

(b)(1), (2)(iii);

3 Ramsameachire v. Ashcroft,

(2d Cir. 2004);

4 see also Jian Xing Huang v. U.S. INS,

(2d

5 Cir. 2005) (holding that “[i]n the absence of solid support

6 in the record,” an asylum applicant’s fear of persecution is

7 “speculative at best”). Accordingly, Lin had to show either

8 (1) a reasonable possibility that he “would be singled out

9 individually for persecution” or (2) “a pattern or practice

10 . . . of persecution of a group of persons similarly situated

11 to [him].” Hongsheng Leng v. Mukasey,

(2d

12 Cir. 2008) (quotation marks and citation omitted); see 8

(b)(2)(iii). A pattern or practice of

14 persecution is the “systemic or pervasive” persecution of a

15 group. In re A-M-,

(B.I.A. 2005);

16 see Santoso v. Holder,

, 111-12 & n.1 (2d Cir.

17 2009).

18 The agency reasonably concluded that Lin did not show

19 that the Chinese government was aware or likely to become

20 aware of his Christianity and to target him on this basis.

21 Hongsheng Leng,

. The letter from Lin’s mother 6 1 was properly discounted because it was authored by an

2 interested witness who was not available for cross

3 examination, and the agency reasonably concluded that any

4 fear of harm based on Lin’s online activity was speculative.

5 See Y.C. v. Holder,

, 334, 337 (2d Cir. 2013).

6 The agency considered the State Department’s reports and

7 acknowledged that some Christians, especially underground

8 church leaders, are subject to arrest, detention, and other

9 serious harm. However, given the evidence of variation in

10 treatment of Christians across provinces, the large number of

11 Christians who remain unharmed, and the government’s policy

12 of allowing friends and family to worship together without

13 registering, the agency reasonably concluded that Lin did not

14 establish “systemic or pervasive” persecution of Christians

15 who were similarly situated to him. See Santoso,

at 111-12.

17 Because Lin did not meet his burden of proof for asylum,

18 he necessarily failed to meet the higher burdens for

19 withholding of removal and CAT relief, given that all three

20 claims were based on the same factual predicate. See Lecaj

21 v. Holder,

(2d Cir. 2010). 7 1 For the foregoing reasons, the petition for review is

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

3 that the Court previously granted in this petition is VACATED,

4 and any pending motion for a stay of removal in this petition

5 is DISMISSED as moot. Any pending request for oral argument

6 in this petition is DENIED in accordance with Federal Rule of

7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

8 34.1(b).

9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, 11 Clerk of Court

8