Case Information
*1 15 ‐ 219 ‐ ag v. Lynch
In the
United States Court of Appeals
for the Second Circuit A UGUST T ERM 2016 No. ‐ ag
L IANPING L I ,
Petitioner , L ORETTA E. L YNCH U NITED S TATES A TTORNEY G ENERAL Respondent .
On Petition Review Order Board Immigration Appeals
A RGUED : S EPTEMBER D ECIDED : O CTOBER
Before: W INTER C ABRANES , Circuit Judges , and R ESTANI , Judge . [*]
Petitioner Lianping Li, a native citizen of China, seeks review of December order of Board of Immigration Appeals affirming August decision of an Immigration Judge denying for asylum, withholding removal, relief under Convention Against Torture. On appeal, petitioner argues agency erred by (1) relying written interview violation due process rights, (2) as past persecution, (3) finding otherwise established persecution. Because petitioner has exhaust first argument regarding consideration notes, we decline review issue. Further, we find although underlying analysis contained certain errors, its ultimate ruling is supported by substantial same made remand.
Accordingly, petition for is DENIED . As have completed our review, any stay removal Court previously granted this petition is VACATED any pending motion stay removal DISMISSED moot.
G ARY J. Y ERMAN New York, N.Y., for Petitioner .
T HANKFUL T. V ANDERSTAR Attorney, Office Immigration Litigation (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division; Linda S. Wernery, Assistant Director, brief ), U.S Department Justice, Washington, D.C., for Respondent .
P ER C URIAM :
Petitioner Lianping seeks order Immigration Judge (“IJ”) Aviva L. Poczter denying asylum, withholding removal, relief under Convention Against Torture (“CAT”). Board Immigration Appeals (“BIA”) issued affirming IJ. In re Lianping Li, No. A205 346 (B.I.A. Dec. 2014), aff’g No. A205 (Immig. Ct. N.Y. City Aug. On appeal, argues erred (1) relying
BACKGROUND
Petitioner a native and citizen People’s Republic China who entered United States on July 30, as a nonimmigrant visitor with authorization remain until January 29, 2003. Li remained in United States without authorization and filed application for asylum, withholding removal, and CAT protection on May 7, 2012. asylum application alleges following. In 1996, Li
became pregnant with second child in violation China’s family planning policy. Though went into hiding, planning officials caught, detained, and beat husband. Concerned his safety, Li turned herself in. officials then forced Li immediately undergo a forced abortion subsequently levied a heavy fine both Li husband. Her husband died in result beatings. Li then fled United States where, late 2011, became involved with China Democracy Party (“CDP”) “participating many protests propaganda
The IJ admitted Li’s application into evidence at hearing August 9, 2013, during which Li testified in support of her application. Among other things, Li after she attended protests and published articles the CDP website her own name, she received three phone calls from representatives of “Wenzhou People’s Association” who “threatened [her], told [her] join Democracy Party because it not permitted by Chinese government.” During hearing, Government confronted Li with notes taken officer during her fear interview. Li’s counsel did object *6 Li’s activities in the United States. Li only presented her testimony that 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 the respondent’s own testimony, the Chinese authorities know that the respondent joined the CDP, knows where respondent located, has the ability contact her, yet has not taken any action against or her family in China in period over year since calls were received,” which “undercuts respondent’s claim government has any interest whatsoever harming or family.” Lastly, IJ found no pattern practice persecution against CDP members China similarly situated Li.
On December 2014, BIA affirmed IJ’s determination, (1) no clear error IJ’s determination did testify credibly about past persecution resulting China’s planning policies; (2) correctly determined demonstrate future persecution based CDP activities. did rely on IJ’s adverse determination rule persecution claim.
DISCUSSION
Ordinarily, we review only BIA’s decision review. See Yang U.S. Dep’t Justice Under circumstances case, IJ’s modified BIA. See id.
We first address Li’s argument regarding the agency’s consideration of her officer’s handwritten notes. then turn to her challenge to agency’s adverse determination regarding her past persecution. Lastly, we address contention erred its determination not established a fear of persecution.
I. Asylum Officer Notes
In review, argues for first time agency’s reliance notes credible fear interview violated due process rights. The Government challenges argument as unexhausted. Court may only review final order removal if “the
alien has exhausted all administrative remedies available alien right.” U.S.C. § 1252(d)(1). “[W]hen an applicant withholding removal has exhaust issue before BIA, issue is, therefore, not addressed reasoned decision, are, by virtue ‘final order’ requirement § 1252(d)(1), usually unable argument.” Zhong U.S. Dep’t Justice Although not jurisdictional, issue exhaustion mandatory hence waivable Government. See id. at 121–23. did object introduction
the due process argument as unexhausted, accordingly decline to review it.
II. Past Persecution: Adverse Credibility next challenges the IJ BIA’s adverse credibility two grounds. First, she argues the incorrectly
found she inconsistently regarding the amount money fined planning officials. Second, contends omissions from written cannot be used to undermine credibility. REAL ID Act directs the to make credibility
determinations proceedings based “totality circumstances” “all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii). Among factors bearing credibility listed statute are “demeanor, candor, responsiveness,” plausibility petitioner’s account, inconsistencies applicant’s statements, “without regard whether” they go “to heart applicant’s claim.” Id. We agency’s factual findings, including adverse credibility determinations, under substantial standard, treating them “conclusive unless any reasonable adjudicator compelled conclude contrary.” U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin Mukasey afford “particular deference” IJ’s determinations defer them “unless, totality circumstances, it plain no reasonable fact finder *9 could make such an adverse ruling.” Id. at 166–67 (internal quotation marks omitted).
When an IJ BIA decision contains errors, “we may nevertheless deem remand futile deny the petition if (1) substantial evidence the record relied by the IJ, considered the aggregate, supports the IJ’s finding that petitioner lacked credibility, (2) disregarding those aspects the IJ’s reasoning that are tainted by error, we can state with confidence that the IJ would adhere his decision were the petition remanded.” Siewe v. Gonzales F.3d 166–67 (2d Cir. 2007) (internal quotation marks omitted); see also Xiao Ji Chen U.S. Dep’t Justice 338–39 2006) (discussing role futility within the substantial evidence standard). “overarching test” deem remand futile “is when reviewing court can confidently predict agency would reach same decision absent errors that were made.” Id. at (internal quotation marks omitted). To determine whether remand would futile, reviewing court “should assess entire record determine whether, based strength supporting error free findings significance those findings, it clear adhere its were remanded.” Id. Accordingly, while may remand, we readily retain our ability affirm IJ’s factual findings despite error. See id. agree with erred inconsistently regarding amount money fined planning officials. During merits hearing, that had paid 10,000 renminbi (“RMB”) and still owed
more than 10,000 RMB. She then clarified that total amount of fine 30,000 to 40,000 RMB. Similarly, credible fear interview
III. Future Persecution
Lastly, turn contention that she has established a fear of future persecution resulting from CDP activities. To establish eligibility based future persecution, an applicant must show that he or she subjectively fears persecution that fear is objectively reasonable. Ramsameachire v. Ashcroft 357 F.3d 178 (2d Cir. 2004). The objective component requires alien “make some showing that authorities in [her] country of nationality are either aware of [her] activities or likely become aware of [her] activities.” Hongsheng Leng Mukasey Moreover, an applicant need provide that there is a reasonable possibility she will singled out persecution if she “establishes there pattern or practice in his or country nationality . . . persecution group persons similarly situated applicant account race, religion, nationality, membership in particular social group, political opinion.” C.F.R. § 1208.13(b)(2)(iii)(A). discern no error in agency’s conclusion Li
show persecution resulting from activities with CDP was objectively reasonable. only after attended protests published articles CDP website own name, received three threatening phone calls representatives Wenzhou People’s Association. gave no further details about these phone calls. thus justified that, absent more “solid support record” *12 identifiable threat, Li’s fear future persecution “speculative at best.” See Jian Xing Huang v. INS , 421 F.3d 129 (2d Cir. agency also reasonably rejected Li’s claim that China has pattern or practice persecuting those similarly situated her: returning citizens who joined CDP United States. See 8 C.F.R. § 1208.13(b)(2)(iii)(A). referred CDP members being arrested on their return China, but presented no corroboration that statement. Moreover, 2012 State Department Human Rights Report, cited by Li appeal, describes China’s punishment several domestic political dissidents, none whom were similarly situated Li.
Li argues that agency incorrectly determined that fact that family China remained unharmed undermined future persecution. contends while claim future persecution may be undercut by similarly situated family members remain unharmed their native country, see Melgar de Torres Reno F.3d 1999), never has joined CDP otherwise politically active. While agree inappropriately relied fact, remand be futile given dearth evidentiary support identifiable threat persecution. See Siewe at 166– 67.
CONCLUSION have reviewed other arguments raised appeal find them without merit. For reasons stated above,
petition is DENIED. As have completed our review, any stay removal Court previously granted this petition is VACATED any pending motion stay removal DISMISSED moot.
[*] Judge Jane A. Restani, Judge United States Court International Trade, sitting designation.
written interview violation due process rights, (2) finding past persecution, (3) established persecution. disagree and, accordingly, DENY review.
activities.” The Li “suffered many telephonic interruptions” threats “the communist party’s spies.” An officer conducted interview with June 14, 2012. Department Homeland Security (“DHS”) commenced removal proceedings against petitioner next day overstaying visa. At hearing before August conceded removability proceeded with application.
admittance these into evidence. On August IJ issued an oral Li removable denying her asylum, withholding removal, CAT relief. In particular, IJ found Li lacking credibility based several discrepancies evidence submitted. Specifically, provided varying accounts (1) whether she was detained before forced abortion; (2) when her husband was released from custody; (3) timeline forced abortion; (4) whether forced wear intrauterine device (“IUD”); (5) amount money husband were allegedly fined result unauthorized pregnancy. The IJ found issue “ble[d] over from [her] planning claim into CDP claim.” IJ also found establish persecution resulting CDP activities. First, found no indicating officials were aware
interview at merits hearing did make due process argument brief BIA. Because Government challenges
reflect stating that paid 10,000 of 30,000 RMB fine. Li’s ambiguous testimony is thus plainly consistent with officer’s notes. Nonetheless, applying ‐ established standard of substantial evidence to facts of this case, we find that although underlying analysis of and contained error, agency’s ultimate ruling—that petitioner failed provide credible account past persecution thus satisfy her burden proof—is supported substantial it is clear same would be made remand. cited many far more significant inconsistencies among Li’s testimony, written application, interview, including several related timing her forced abortion, detention her husband, forced use IUD. Given these numerous important inconsistencies, are confident remand be futile. additional argument omissions cannot used determine meritless. While it is true, states, “asylum applicants are required list every incident persecution their I statements,” Pavlova INS 2006), application did simply omit incidents persecution. Rather, described same incidents persecution differently.