Filed: Jul. 15, 2015
Latest Update: Mar. 02, 2020
Summary: 14-72 Liang v. Lynch BIA Poczter, IJ A200 816 878 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 NOTAT
Summary: 14-72 Liang v. Lynch BIA Poczter, IJ A200 816 878 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 NOTATI..
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14-72
Liang v. Lynch
BIA
Poczter, IJ
A200 816 878
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 15th day of July, two thousand fifteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 XUNSONG-ZHU LIANG,
14 Petitioner,
15
16 v. 14-72
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,*
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lewis G. Hu, New York, NY.
24
25
*
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. as Respondent.
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General, Civil Division; Leslie
3 McKay, Assistant Director; Stefanie
4 Notarino Hennes, Trial Attorney,
5 Office of Immigration Litigation,
6 United States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Xunsong-Zhu Liang, a native and citizen of China, seeks
14 review of a December 17, 2013, decision of the BIA affirming
15 the March 9, 2012, decision of an Immigration Judge (“IJ”)
16 denying his application for asylum, withholding of removal,
17 and relief under the Convention Against Torture (“CAT”). In
18 re Xunsong-Zhu Liang, No. A200 816 878 (B.I.A. Dec. 17,
19 2013), aff’g No. A200 816 878 (Immig. Ct. N.Y. City Mar. 9,
20 2012). We assume the parties’ familiarity with the
21 underlying facts and procedural history in this case.
22 Under the circumstances of this case, we have
23 considered both the IJ’s and the BIA’s opinions “for the
24 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
25 (2d Cir. 2008)(internal quotation marks and citation
26 omitted). The applicable standards of review are well
2
1 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
2 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
3 For asylum applications, like Liang’s, governed by the
4 REAL ID Act, the agency may, “[c]onsidering the totality of
5 the circumstances,” base a credibility finding on an asylum
6 applicant’s “demeanor, candor, or responsiveness,” the
7 plausibility of his account, and inconsistencies in his
8 statements, “without regard to whether” they go “to the
9 heart of the applicant’s claim,” so long as they reasonably
10 support an inference that the applicant is not credible. 8
11 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia
Lin, 534 F.3d at
12 167. “We defer therefore to an IJ’s credibility
13 determination unless, from the totality of the
14 circumstances, it is plain that no reasonable fact-finder
15 could make such an adverse credibility ruling.” Xiu Xia
16
Lin, 534 F.3d at 167.
17 Here, substantial evidence supports the IJ’s finding
18 that Liang was not credible with respect to either past
19 persecution based on his violation of family planning
20 policies or future persecution based on his Christianity.
21 The IJ did not err in basing the adverse credibility
22 determination, in part, on Liang’s demeanor. See 8 U.S.C.
3
1 § 1158(b)(1)(B)(iii); Li Zu Guan v. INS, 453 F.3d 129, 140
2 (2d Cir. 2006) (noting that “demeanor is paradigmatically
3 the sort of evidence that a fact-finder is best positioned
4 to evaluate”). When the Government attorney asked open-
5 ended questions, Liang omitted basic, crucial aspects of the
6 claimed persecution on which his application was predicated.
7 When his own attorney asked more pointed questions, however,
8 he was able to provide the information from his application.
9 The IJ was not required to credit Liang’s explanations that
10 he forgot the information or did not understand the
11 Government’s questions, as a reasonable fact finder would
12 not be compelled to accept them. See Majidi v. Gonzales,
13
430 F.3d 77, 80-81 (2d Cir. 2005). The demeanor finding is
14 further supported by the IJ’s identification of long pauses
15 that marred Liang’s testimony. Based on our review of the
16 record, Liang’s argument that the pauses reasonably resulted
17 from the Government attorney’s open-ended questions is
18 unconvincing. Because the record supports the IJ’s demeanor
19 finding, and the IJ was in the best position to observe
20 Liang’s manner while testifying, we afford the finding
21 particular deference. See Zhou Yun Zhang v. INS,
386 F.3d
22 66, 73-74 (2d Cir. 2004), overruled on other grounds by Shi
4
1 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.
2 2007).
3 Inconsistencies between Liang’s testimony and asylum
4 application provide additional support for both the demeanor
5 finding and the adverse credibility determination as a
6 whole. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin,
534
7 F.3d at 165-66; Li Hua Lin v. U.S. Dep’t of Justice, 453
8 F.3d 99, 109 (2d Cir. 2006) (“We can be still more confident
9 in our review of observations about an applicant’s demeanor
10 where, as here, they are supported by specific examples of
11 inconsistent testimony.”). Because Liang omitted several
12 important facts, the IJ reasonably concluded that Liang’s
13 testimony was inconsistent with his written application,
14 which set forth those facts in detail. See Xiu Xia Lin,
534
15 F.3d at 166 n.3 (“An inconsistency and an omission are, for
16 [credibility] purposes, functionally equivalent.”).
17 As the IJ found, Liang was also inconsistent with
18 respect to his claim of religious persecution. He first
19 testified that his parents still attended the family’s usual
20 church, but, when pressed, he testified that they were no
21 longer attending that church because they were in hiding.
22 Liang’s argument that his direct testimony is credible
23 because it is consistent with statements made during his
5
1 initial interview is misplaced. First, this argument does
2 not resolve the inconsistencies between his testimony in
3 response to the Government attorney’s questions and his
4 application and initial interview. See Majidi, 430 F.3d at
5 80 (explaining that petitioner’s explanation must not merely
6 be plausible but rather must compel a reasonable fact-finder
7 to credit his testimony). Second, the REAL ID Act allows
8 the agency to base a credibility finding on “any
9 inconsistency,” if the totality of the circumstances
10 establishes that the applicant is not credible. Xiu Xia
11
Lin, 534 F.3d at 167 (emphasis in original) (citing 8 U.S.C.
12 § 1158(b)(1)(B)(iii)).
13 The demeanor finding, omissions, and inconsistencies
14 provide substantial support for the IJ’s adverse credibility
15 determination, particularly because they relate directly to
16 the main aspects of Liang’s claimed persecution. See
id.
17 Because the only evidence of a threat to Liang’s life or
18 freedom relied on his credibility, the adverse credibility
19 determination is dispositive of asylum, withholding of
20 removal, and CAT relief. See Paul v. Gonzales,
444 F.3d
21 148, 156-57 (2d Cir. 2006).
22 For the foregoing reasons, the petition for review is
23 DENIED. As we have completed our review, any stay of
6
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
7
