Lianping v. Lynch

• Decision Date: 05 October 2016
• Docket Number: August Term 2016,No. 15-219-ag,15-219-ag
• Citation: 839 F.3d 144
• Parties: Lianping Li, Petitioner, v. Loretta E. Lynch, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

839 F.3d 144

Lianping Li, Petitioner,

v.Loretta E. Lynch, United States Attorney General, Respondent.

No. 15-219-ag

August Term 2016

United States Court of Appeals, Second Circuit.

Argued: September 28, 2016

Decided: October 5, 2016

Gary J. Yerman , New York, N.Y., for Petitioner.

Thankful T. Vanderstar , Attorney, Office of Immigration Litigation (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division; Linda S. Wernery, Assistant Director, on the brief), U.S. Department of Justice, Washington, D.C., for Respondent.

Before: Winter, Cabranes, Circuit Judges, and Restani, Judge.^*

Per Curiam:

Petitioner Lianping Li seeks review of an order of Immigration Judge (“IJ”) Aviva L. Poczter denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). The Board of Immigration Appeals (“BIA”) issued a decision affirming the IJ. In re Lianping Li, No. A205 429 346 (B.I.A. Dec. 29, 2014), aff'g No. A205 429 346 (Immig. Ct. N.Y. City Aug. 16, 2013). On appeal, Li argues that the BIA and IJ erred by (1) relying on written notes from her asylum interview in violation of her due process rights, (2) finding her not credible as to her past persecution, and (3) finding that she had not established a well-founded fear of future persecution. We disagree and, accordingly, DENY the petition for review.

BACKGROUND

Petitioner is a native and citizen of the People's Republic of China who entered the United States on July 30, 2002 as a nonimmigrant visitor with authorization to remain until January 29, 2003. Li remained in the United States without authorization and filed an application for asylum, withholding of removal, and CAT protection on May 7, 2012.

Li's asylum application alleges the following. In 1996, Li became pregnant with her second child in violation of China's family planning policy. Though she went into hiding, family planning officials caught, detained, and beat her husband. Concerned for his safety, Li turned herself in. Chinese officials then forced Li to immediately undergo a forced abortion and subsequently levied a heavy fine on both Li and her husband. Her husband died in 1997 as a result of the beatings. Li then fled to the United States in 2002 where, in late 2011, she became involved with the China Democracy Party (“CDP”) by “participating in many protests and propaganda activities.” The application notes that Li “suffered many telephonic interruptions” and threats from “the communist party's spies.”

An asylum officer conducted a credible fear interview with Li on June 14, 2012. The Department of Homeland Security (“DHS”) commenced removal proceedings against the petitioner the next day for overstaying her visa. At a hearing before the IJ on August 2, 2012, Li conceded removability and proceeded with her asylum application.

The IJ admitted Li's asylum application into evidence at a hearing on August 9, 2013, during which Li testified in support of her application. Among other things, Li testified that after she had attended protests and published articles on the CDP website in her own name, she received three phone calls from representatives of the “Wenzhou People's Association” who “threatened [her], and told [her] not to join the Democracy Party because it would not be permitted by the Chinese government.” During the hearing, the Government confronted Li with notes taken by the asylum officer during her credible fear interview. Li's counsel did not object to the admittance of these notes into evidence.

On August 16, 2013, the IJ issued an oral decision finding Li removable and denying her application for asylum, withholding of removal, and CAT relief. In particular, the IJ found Li lacking in credibility based on several discrepancies in the evidence submitted. Specifically, Li provided varying accounts of (1) whether she was detained before her forced abortion; (2) when her husband was released from custody; (3) the timeline of her forced abortion; (4) whether she was forced to wear an intrauterine device

(“IUD”); and (5) the amount of money she and her husband were allegedly fined as a result of her unauthorized pregnancy. The IJ found that Li's credibility issue “ble[d] over from [her] family planning claim into the CDP claim.”

The IJ also found that Li failed to establish a well-founded fear of future persecution resulting from her CDP activities. First, the IJ found no evidence indicating that Chinese officials were aware of Li's activities in the United States. Li only presented her testimony that she 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 to the respondent's own testimony, the Chinese authorities know that the respondent joined the CDP, knows where respondent is located, has the ability to contact her, and yet has not taken any action against her or her family in China in the period of over a year since the calls were received,” which “undercuts the respondent's claim that the Chinese government has any interest whatsoever in harming her or her family.” Lastly, the IJ found no pattern or practice of persecution against CDP members in China similarly situated to Li.

On December 29, 2014, the BIA affirmed the IJ's determination, finding (1) no clear error in the IJ's determination that Li did not testify credibly about her past persecution resulting from China's family planning policies; and (2) that the IJ correctly determined that Li failed to demonstrate a well-founded fear of future persecution based on her CDP activities. The BIA did not rely on the IJ's adverse credibility determination to rule on Li's future persecution claim.

DISCUSSION

Ordinarily, we review only the BIA's decision on a petition for review. See Yang v. U.S. Dep't of Justice , 426 F.3d 520, 522 (2d Cir. 2005)

. Under the circumstances of this case, we review the IJ's decision as modified by the BIA. See id.

We first address Li's argument regarding the agency's consideration of her asylum officer's handwritten notes. We then turn to her challenge to the agency's adverse credibility determination regarding her past persecution. Lastly, we address Li's contention that the agency erred in its determination that she had not established a well-founded fear of future persecution.

I. Asylum Officer Notes

In her petition for review, Li argues for the first time that the agency's reliance on the notes of her credible fear interview violated her due process rights. The Government challenges this argument as unexhausted.

The Court may only review a final order of removal if “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1)

. “[W]hen an applicant for asylum or withholding of removal has failed to exhaust an issue before the BIA, and that issue is, therefore, not addressed in a reasoned BIA decision, we are, by virtue of the ‘final order’ requirement of § 1252(d)(1), usually unable to review the argument.”

Zhong v. U.S. Dep't of Justice , 480 F.3d 104, 122 (2d Cir. 2007)

. Although not jurisdictional, issue exhaustion is mandatory and hence waivable by the Government. See

id. at 121–23.

Li did not object to the introduction of the credible fear interview notes at her merits hearing and did not make a due process argument in her brief to the BIA. Because the Government challenges the due process argument as unexhausted, we accordingly decline to review it.

II. Past Persecution: Adverse Credibility

Li next challenges the IJ and BIA's adverse credibility finding on two grounds. First, she argues that the IJ and BIA incorrectly found that she testified inconsistently regarding the amount of money she was fined by Chinese family planning officials. Second, she contends that omissions from her written asylum application cannot be used to undermine her credibility.

The REAL ID Act directs the agency to make credibility determinations in asylum proceedings based on the “totality of the circumstances” and “all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii)

. Among the factors bearing on credibility listed in the statute are “demeanor, candor, or responsiveness,” the plausibility of the petitioner's account, and inconsistencies in the applicant's statements, “without regard to whether” they go “to the heart of the applicant's claim.” Id. We review the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) ; see also

Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165 (2d Cir. 2008). We afford “particular deference” to an IJ's credibility determinations and defer to them “unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Id. at 166–67 (internal quotation marks omitted).

When an IJ or BIA decision contains errors, “we may nevertheless deem remand futile and deny the petition for review if (1) substantial evidence in the record relied on by the IJ, considered in the aggregate, supports the IJ's finding that petitioner lacked credibility, and (2) disregarding those aspects of the IJ's reasoning that are tainted by error, we can state with confidence that the IJ would adhere to his decision were the petition remanded.” Siewe v. Gonzales , 480 F.3d 160, 166–67 (2d Cir. 2007)

(internal quotation marks omitted); see also

Xiao Ji Chen v. U.S. Dep't of Justice , 471 F.3d 315, 338–39 (2d Cir. 2006) (discussing the role of futility within the substantial evidence standard). The “overarching test” to deem a remand futile “is when the reviewing court can confidently predict that the agency would reach the same decision absent the errors that were made.” Id. at 339 (internal quotation marks omitted). To...