14-8-ag
Li v. Lynch
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 5th day of October, two thousand fifteen.
5
6 PRESENT: RALPH K. WINTER,
7 DENNIS JACOBS,
8 PIERRE N. LEVAL,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 JUAN LI,
13 Petitioner,
14
15 -v.- 14-8-ag
16
17 LORETTA E. LYNCH, United States
18 Attorney General,*
19 Respondent.
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21
22 FOR PETITIONER: Lewis G. Hu, New York, New York.
23
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
1
1 FOR RESPONDENT: Stuart F. Delery, Linda S.
2 Wernery, and Theodore C. Hirt,
3 Office of Immigration
4 Litigation, U.S. Department of
5 Justice, Washington, D.C.
6
7 Petition for review of a decision of the Board of
8 Immigration Appeals.
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the petition is DENIED.
12
13 Petitioner Juan Li, a native and citizen of the
14 People’s Republic of China, petitions for review of a
15 December 12, 2013 decision of the Board of Immigration
16 Appeals (“BIA”) affirming a February 27, 2012 decision of an
17 Immigration Judge (“IJ”) denying Li’s application for
18 asylum, withholding of removal, and relief under the
19 Convention Against Torture (“CAT”). We assume the parties’
20 familiarity with the underlying facts, the procedural
21 history, and the issues presented for review.
22
23 To be eligible for asylum, an applicant must show past
24 persecution or a “a well-founded fear of [future]
25 persecution on account of race, religion, nationality,
26 membership in a particular social group, or political
27 opinion.” 8 U.S.C. §§ 1101(42), 1158(b). The applicant
28 bears the burden of proving eligibility; and under the REAL
29 ID Act of 2005,1 an applicant may be found not credible
30 based on “inconsistencies and omissions that are ‘collateral
31 or ancillary’ to [the] applicant’s claims.” Xiu Xia Lin v.
32 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); see 8 U.S.C.
33 § 1158(b)(1)(B)(iii).
34
35 An applicant is entitled to withholding of removal
36 under 8 U.S.C. § 1231(b)(3) if she shows that her “life or
37 freedom would be threatened in [the] country [to which she
38 would be removed] because of [her] race, religion,
39 nationality, membership in a particular social group, or
40 political opinion.” Where an asylum claim and a withholding
41 claim are “based on the very fact, or set of facts, that the
42 IJ found not to be credible,” the adverse credibility
1
The Real ID Act applies to cases (such as this)
filed after May 11, 2005.
2
1 finding may be the basis for denying both claims. Paul v.
2 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).2
3
4 The IJ found that Li’s account of persecution was not
5 credible, and the BIA affirmed in substantial part. Under
6 the circumstances of this case, we review the IJ’s decision
7 as modified by the BIA decision. See Xue Hong Yang v. U.S.
8 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We
9 review the IJ’s findings of fact for substantial evidence, 8
10 U.S.C. § 1252(b)(4)(B), and we defer “to an IJ’s credibility
11 determination unless, from the totality of the
12 circumstances, it is plain that no reasonable fact-finder
13 could make such an adverse credibility ruling,” Xiu Xia Lin,
14 534 F.3d at 167.
15
16 The evidence on which the IJ rested the adverse
17 credibility determination is thin, but sufficient in view of
18 the deference we must accord it. We cannot conclude that
19 “from the totality of the circumstances, it is plain that no
20 reasonable fact-finder could make such an adverse
21 credibility ruling,” id. Accordingly, and finding no merit
22 in Li’s other arguments, the petition for review is DENIED.
23 As we have completed our review, Li’s pending motion for a
24 stay of removal is DISMISSED as moot.
25
26 FOR THE COURT:
27 CATHERINE O’HAGAN WOLFE, CLERK
28
29
30
2
We decline to address Li’s CAT claim because it
was not administratively exhausted. Li did not meaningfully
address the claim in her BIA appeal. See Zhang v. Gonzales,
426 F.3d 540, 541 n.1 (2d Cir. 2005). Sp. A. 2.
3