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. 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.

(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.”

(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 2 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,

(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,

.

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,

(2d Cir. 2006). The agency

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

a credibility finding on inconsistencies in an asylum 3 applicant’s statements and other record evidence “without

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

the applicant’s claim.”

(b)(1)(B)(iii); see

also Xiu Xia Lin v. Mukasey,

(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,

. 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,

(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,

(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 4 asylum process.

. 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.”

(b)(3)(A);

(b)(1)(iii); Hongsheng Leng v. Mukasey,

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

“objectively reasonable,” Ramsameachire v. Ashcroft,

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

Jian Xing Huang v. U.S. INS,

(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” 5 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,

(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,

(2d Cir. 2006);

Xue Hong Yang v. U.S. Dep’t of Justice,

(2d

Cir. 2005).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of removal 6 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

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