holding that remand 3 is futile despite error where “(1) substantial evidence . . 4 . , considered in the aggregate, supports the IJ’s finding 5 that petitioner lacked credibility, and (2) disregarding 6 those aspects of the IJ’s reasoning that are tainted by error, 7 we can state with confidence that the IJ would adhere to his 8 decision were the petition remanded” (quotation marks 9 omitted)
How later courts described this case
- holding that remand 3 is futile despite error where “(1) substantial evidence . . 4 . , considered in the aggregate, supports the IJ’s finding 5 that petitioner lacked credibility, and (2) disregarding 6 those aspects of the IJ’s reasoning that are tainted by error, 7 we can state with confidence that the IJ would adhere to his 8 decision were the petition remanded” (quotation marks 9 omitted)
- stating remand futile if (1) substantial record evidence relied on by IJ, considered in aggregate, supports finding that petitioner lacked credibility, and (2) disregarding aspects of 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” (internal quotation marks omitted)
- holding that “we may . . . deem remand futile . . . if (1) substantial evidence . . . [,] considered in the aggregate, supports the IJ’s finding that petitioner lacked credibility” and (2) “we can state with confidence 6 that the IJ would adhere to his decision were the petition remanded” (quotation marks omitted)
- holding that “we may . . . deem remand futile and deny the petition for review if . . . substantial evidence in the record relied on by the IJ, considered in the aggregate, supports the IJ’s finding that petitioner lacked credibility” (quotation marks omitted)
Written by the judges who cited it.
The opinion
15‐219‐ag
Li v. Lynch
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2016
No. 15‐219‐ag
LIANPING LI,
Petitioner,
v.
LORETTA E. LYNCH,
UNITED STATES ATTORNEY GENERAL,
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals
ARGUED: SEPTEMBER 28, 2016
DECIDED: OCTOBER 5, 2016
Before: WINTER, CABRANES, Circuit Judges, and RESTANI, Judge.*
Petitioner Lianping Li, a native and citizen of China, seeks
review of a December 29, 2014 order of the Board of Immigration
Appeals affirming an August 16, 2013 decision of an Immigration
Judge denying Li’s application for asylum, withholding of removal,
and relief under the Convention Against Torture. On appeal,
petitioner argues that the agency 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 otherwise established a well‐founded fear of future
persecution. Because the petitioner has failed to exhaust her first
argument regarding the consideration of the asylum notes, we
decline to review the issue. Further, we find that although the
underlying analysis of the agency contained certain errors, its
ultimate ruling is supported by substantial evidence and the same
decision would be made on remand.
Accordingly, the petition for review is DENIED. As we have
completed our review, any stay of removal 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.
* Judge Jane A. Restani, Judge for the United States Court of International
Trade, sitting by designation.
2
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.
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.
3
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.
4
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
5
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.
6
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
7
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
8
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
determine whether remand would be futile, a reviewing court
“should assess the entire record and determine whether, based on the
strength of the evidence supporting the error‐free findings and the
significance of those findings, it is clear that the agency would adhere
to its decision were the petition remanded.” Id. Accordingly, while
we may remand, we readily retain our ability to affirm an IJ’s factual
findings despite error. See id.
We agree with Li that the IJ and BIA erred in finding that she
testified inconsistently regarding the amount of money she was fined
by Chinese family planning officials. During her merits hearing, Li
9
testified that she had paid 10,000 renminbi (“RMB”) and still owed
more than 10,000 RMB. She then clarified that the total amount of the
fine was 30,000 to 40,000 RMB. Similarly, the credible fear interview
notes reflect Li stating that she had paid 10,000 of a 30,000 RMB fine.
Li’s ambiguous testimony is thus plainly consistent with the asylum
officer’s notes.
Nonetheless, applying the well‐established standard of
substantial evidence to the facts of this case, we find that although
the underlying analysis of the IJ and BIA contained this error, the
agency’s ultimate ruling—that the petitioner failed to provide a
credible account of past persecution and thus failed to satisfy her
burden of proof—is supported by substantial evidence and it is clear
that the same decision would be made on remand. The agency cited
many far more significant inconsistencies among Li’s testimony,
written application, and credible fear interview, including several
related to the timing of her forced abortion, the detention of her
husband, and her forced use of an IUD. Given these numerous and
important inconsistencies, we are confident that remand would be
futile.
Li’s additional argument that her omissions cannot be used to
determine her credibility is meritless. While it is true, as Li states, that
“asylum applicants are not required to list every incident of
persecution on their I‐589 statements,” Pavlova v. INS, 441 F.3d 82, 90
(2d Cir. 2006), her asylum application did not simply omit incidents
of persecution. Rather, her application described the same incidents
of persecution differently.
10
III. Future Persecution
Lastly, we turn to Li’s contention that she has established a
well‐founded fear of future persecution resulting from her CDP
activities. To establish asylum eligibility based on future persecution,
an applicant must show that he or she subjectively fears persecution
and that this fear is objectively reasonable. Ramsameachire v. Ashcroft,
357 F.3d 169, 178 (2d Cir. 2004). The objective component requires the
alien to “make some showing that authorities in [her] country of
nationality are either aware of [her] activities or likely to become
aware of [her] activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135,
143 (2d Cir. 2008). Moreover, an asylum applicant need not provide
evidence that there is a reasonable possibility she will be singled out
for persecution if she “establishes that there is a pattern or practice in
his or her country of nationality . . . of persecution of a group of
persons similarly situated to the applicant on account of race,
religion, nationality, membership in a particular social group, or
political opinion.” 8 C.F.R. § 1208.13(b)(2)(iii)(A).
We discern no error in the agency’s conclusion that Li failed to
show that her fear of future persecution resulting from her activities
with the CDP was objectively reasonable. Li only testified that after
she had attended protests and published articles on the CDP website
in her own name, she received three threatening phone calls from
representatives of the Wenzhou People’s Association. Li gave no
further details about these phone calls. The agency was thus justified
in finding that, absent more “solid support in the record” of an
11
identifiable threat, Li’s fear of future persecution was “speculative at
best.” See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005).
The agency also reasonably rejected Li’s claim that China has a
pattern or practice of persecuting those similarly situated to her:
returning Chinese citizens who joined the CDP in the United States.
See 8 C.F.R. § 1208.13(b)(2)(iii)(A). Li’s application referred to CDP
members being arrested on their return to China, but she presented
no corroboration for that statement. Moreover, the 2012 State
Department Human Rights Report, cited by Li on appeal, describes
China’s punishment of several domestic political dissidents, none of
whom were similarly situated to Li.
Li argues that the agency incorrectly determined that the fact
that her family in China remained unharmed undermined her fear of
future persecution. Li contends that while a claim of future
persecution may be undercut by evidence that similarly situated
family members remain unharmed in their native country, see Melgar
de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999), she never testified
that her family has joined the CDP or is otherwise politically active.
While we agree that the agency inappropriately relied on this fact,
remand would be futile given the dearth of evidentiary support for
an identifiable threat of future persecution. See Siewe, 480 F.3d at 166–
67.
CONCLUSION
We have reviewed the other arguments raised by Li on appeal
and find them to be without merit. For the reasons stated above, the
12
petition for review is DENIED. As we have completed our review,
any stay of removal 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.
13