Lianping Li v. Lynch, 839 F.3d 144

Lianping Li, a Chinese national, overstayed a 2002 visitor visa and applied for asylum, withholding of removal, and CAT protection in 2012 based on (1) a forced abortion and related family‑planning persecution in China in the 1990s and (2) political activities with the China Democracy Party (CDP) in the U.S. and subsequent threatening phone calls.
DHS conducted a credible‑fear interview on June 14, 2012; removal proceedings began the next day. Li testified at a merits hearing in August 2013.
The IJ admitted the asylum officer’s handwritten notes from Li’s credible‑fear interview into evidence (Li’s counsel did not object) and found Li not credible as to past family‑planning persecution and denied asylum, withholding, and CAT relief.
The BIA affirmed the IJ’s adverse credibility finding and denial of relief, though it did not rely on the credibility finding to decide the future‑persecution (CDP) claim.
Li appealed to the Second Circuit, arguing (1) due process violation from use of asylum interview notes, (2) erroneous adverse credibility finding on past persecution, and (3) error in rejecting a well‑founded fear of future persecution based on CDP activity. The Government argued the due‑process claim was unexhausted.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Use of asylum officer handwritten notes (due process)	Li: agency’s reliance on interview notes violated due process	Gov: Li failed to exhaust this claim before the BIA; challenge is unexhausted	Court declined to review as unexhausted (Li did not raise it before the BIA or object at merits hearing)
Adverse credibility re: past family‑planning persecution	Li: IJ/BIA incorrectly found inconsistencies (e.g., fine amount) and improperly relied on omissions	Gov: IJ/BIA reasonably relied on multiple material inconsistencies across statements and interviews	Court found one specific error (fine amount) but held substantial evidence supports adverse‑credibility overall and remand would be futile; credibility determination affirmed
Well‑founded fear of future persecution (CDP activity)	Li: three threatening phone calls + CDP activity in U.S. show objective risk or pattern/practice	Gov: record lacks evidence authorities know of or would act on Li’s activities; no corroboration of pattern/practice	Court affirmed: fear speculative absent more concrete evidence of an identifiable threat or pattern/practice; agency’s reliance on family safety was an error but harmless because overall record lacks support

Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir.) (appellate review ordinarily limited to BIA decision)
Zhong v. U.S. Dep’t of Justice, 480 F.3d 104 (2d Cir.) (issue exhaustion before the BIA required)
Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d Cir.) (deference to IJ credibility findings; standard of review)
Siewe v. Gonzales, 480 F.3d 160 (2d Cir.) (when remand is futile; retain ability to affirm despite some errors)
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir.) (analysis of remand futility and substantial evidence)
Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir.) (subjective and objective components for future persecution)
Jian Xing Huang v. INS, 421 F.3d 125 (2d Cir.) (speculative fear insufficient without solid record support)
Hongsheng Leng v. Mukasey, 528 F.3d 135 (2d Cir.) (authorities must be shown to be aware or likely to become aware of claimant’s activities)
Pavlova v. INS, 441 F.3d 82 (2d Cir.) (applicants need not list every incident on I-589 but inconsistencies may be probative)
Melgar de Torres v. Reno, 191 F.3d 307 (2d Cir.) (evidence that family remains unharmed can undercut future‑persecution claim)