Opinion
No. 09-2475-ag.
July 29, 2010.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
Oleh R. Tustaniwsky, New York, NY, for Petitioner.
Tony West, Assistant Attorney General, Civil Division; Samia Naseem, of Counsel; Blair T. O'Connor, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: JOSÉ A. CABRANES, ROBERT A. KATZMANN, and REENA RAGGI, Circuit Judges.
SUMMARY ORDER
Liang Li Lin, a native and citizen of the People's Republic of China, seeks review of a May 20, 2009 order of the BIA affirming the July 24, 2007 decision of Immigration Judge ("IJ") Robert D. Weisel denying Lin's application for asylum, with-holding of removal, and relief under the Convention Against Torture ("CAT"). In re Liang Li Lin, No. A099 927 386 (B.I.A. May 20, 2009), affg No. A099 927 386 (Immig. Ct. N.Y. City July 24, 2007). Under the circumstances of this case, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). In applying these standards, we assume the parties' familiarity with the underlying facts and procedural history in this case.
Lin submits that the BIA erred in affirming (1) the IJ's adverse credibility determination and (2) the IJ's alternate finding that, even if credible, Lin failed to establish an objectively reasonable fear of persecution on account of his alleged participation in the China Democracy Party ("CDP"). We are not persuaded.
1. The Adverse Credibility Finding
Under the REAL ID Act, which applies to Lin's application for relief, "an IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as the `totality of the circumstances' establishes that an asylum applicant is not credible." Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (emphasis in original) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)); see Matter of J-Y-C-, 24 I. N. Dec. 260, 265 (BIA 2007) (holding that "the REAL ID Act no longer requires the trier of fact to find a nexus between inconsistencies and the `heart of the claim'"). Here, the IJ reasonably found that the discrepancy between Lin's testimony and that of his witness, Jowi, regarding when they last saw each other warranted an adverse credibility finding. As the BIA noted, Lin's claim was based solely upon his activities with the CDP in the United States, and the inconsistency related "directly to the veracity of the claim for relief and the circumstances surrounding the basis for [Lin's] application." BIA Op. at 1.
2. The Failure to Establish an Objectively Reasonable Fear of Persecution
We also detect no error in the agency's alternative determination that Lin failed to establish an objectively reasonable fear of persecution, even assuming his credibility. Lin testified that a photograph was taken of him protesting outside the Chinese consulate but concedes that he was not wearing a name tag or other identification when the photograph was taken. He also submitted two articles from the CDP website in which his name appears. However, the affidavits Lin submitted from family members in China do not indicate that the Chinese government is aware of these articles or of Lin's alleged CDP activities. On this record, the agency's conclusion that Lin failed to establish an objectively reasonable fear of persecution was reasonable. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that absent solid record support, claimed fear of persecution was "speculative at best"); see also Hongsheng, Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (holding that to establish well-founded fear of persecution absent evidence of past persecution alien must show that authorities are aware Or likely to become aware of alien's activities).
We decline to consider Lin's unexhausted argument that there is a pattern and practice of persecution of CDP members in China. See 8 U.S.C. § 1252(d)(1); Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 124 (2d Cir. 2007).
3. Withholding and CAT Relief
Because Lin was unable to establish the objective likelihood of persecution required to meet his burden of proof on his asylum claim, his withholding of removal and CAT claims necessarily fail, as they were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
4. Conclusion
For the foregoing reasons, 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. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).