Filed: Apr. 24, 2012
Latest Update: Feb. 12, 2020
Summary: 10-5063-ag Liu v. Holder BIA LaForest, IJ A088 517 178 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
Summary: 10-5063-ag Liu v. Holder BIA LaForest, IJ A088 517 178 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 N..
More
10-5063-ag
Liu v. Holder
BIA
LaForest, IJ
A088 517 178
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 24th day of April, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 ROSEMARY S. POOLER,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 WENXIN LIU, a.k.a. WEN XING LIU,
14 Petitioner,
15
16 v. 10-5063-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Russel J.E. Verby, Senior
27 Litigation Counsel; Jennifer P.
28 Levings, Senior Litigation Counsel,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DENIED.
6 Wenxin Liu, a native and citizen of the People’s
7 Republic of China, seeks review of the November 18, 2010,
8 order of the BIA affirming the November 21, 2008, decision
9 of Immigration Judge (“IJ”) Brigitte LaForest, which denied
10 his applications for asylum, withholding of removal, and
11 relief under the Convention Against Torture (“CAT”). In re
12 Wenxin Liu, No. A088 517 178 (B.I.A. Nov. 18, 2010), aff’g
13 No. A088 517 178 (Immig. Ct. N.Y. City Nov. 21, 2008). We
14 assume the parties’ familiarity with the underlying facts
15 and procedural history in this case.
16 Under the circumstances of this case, we review the
17 decision of the IJ as supplemented by the BIA. See Yan Chen
18 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
19 applicable standards of review are well-established. See
20 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,
21
562 F.3d 510, 513 (2d Cir. 2009).
22 For asylum applications, such as Liu’s, governed by the
23 amendments made to the Immigration and Nationality Act by
2
1 the REAL ID Act of 2005, the agency may, considering the
2 totality of the circumstances, base a credibility finding on
3 an asylum applicant’s “demeanor, candor, or responsiveness,”
4 the plausibility of his or her account, and inconsistencies
5 in his or her statements, without regard to whether they go
6 “to the heart of the applicant’s claim.” See 8 U.S.C.
7 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
8 167 (2d Cir. 2008). We will “defer . . . to an IJ’s
9 credibility determination unless, from the totality of the
10 circumstances, it is plain that no reasonable fact-finder
11 could make” such a ruling. Xiu Xia
Lin, 534 F.3d at 167.
12 In this case, the IJ reasonably based her adverse
13 credibility determination on Liu’s disparate claims, the
14 inconsistencies in his testimony, and the lack of convincing
15 corroborative evidence.
16 Liu testified that several Chinese policemen arrested,
17 confined, and beat him for seven days after finding him
18 watching Falun Gong discs. Yet, as he admitted in his
19 asylum application, he offered an entirely different, and
20 false, claim during a credible fear interview, initially
21 attesting that Chinese government officials beat him after
22 he sought compensation from the government. Liu also
3
1 alleged that he practiced Falun Gong regularly in the United
2 States, but when questioned as to why his friends refused to
3 submit affidavits, he gave conflicting testimony as to
4 whether his fellow Falun Gong practitioners had immigration
5 status in the United States.
6 The IJ properly relied on these inconsistencies and
7 lack of corroborative evidence to discredit Liu’s
8 explanation and find him not credible. See 8 U.S.C.
9 § 1158(b)(1)(B)(iii); Yun-Zui Guan v. Gonzales, 432 F.3d
10 391, 398-99 (2d Cir. 2005) (holding that where “immigration
11 officials have been presented with two materially different
12 asylum claims, it is entirely appropriate for a factfinder
13 to rely on this evidence as a basis for determining whether
14 a petitioner was actually persecuted in the manner asserted”
15 (internal quotations omitted)); Majidi v. Gonzales,
430 F.3d
16 77, 80-81 (2d Cir. 2005) (the agency need not credit an
17 applicant’s explanations for inconsistent testimony unless
18 those explanations would compel a reasonable fact finder to
19 do so).
20 Given Liu’s lack of credibility, the agency also
21 reasonably declined to credit the dismissal letter and
22 affidavits Liu submitted, particularly as the preparers were
4
1 not available for cross-examination. See Siewe v. Gonzales,
2 480 F.3d 160, 170 (2d Cir. 2007) (“a single instance of
3 false testimony may . . . infect the balance of the alien’s
4 uncorroborated or unauthenticated evidence”). Although Liu
5 argues that the IJ failed to consider the photographs of his
6 Falun Gong practice, the IJ sufficiently acknowledged the
7 photographs by accepting them into evidence. See Wei Guang
8 Wang v. BIA,
437 F.3d 270, 273-75 (2d Cir. 2006); Xiao Ji
9 Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 338 n.17 (2d
10 Cir. 2006). The totality of the circumstances therefore
11 supports the agency’s adverse credibility determination, and
12 we defer to that finding. See 8 U.S.C.
13 § 1158(b)(1)(B)(iii); Xiu Xia
Lin, 534 F.3d at 167.
14 Furthermore, because the only evidence of a threat to Liu’s
15 life or freedom, or that he was likely to be tortured,
16 depended upon his credibility, the adverse credibility
17 determination in this case necessarily precludes success on
18 his claims for withholding of removal and CAT relief. See
19 Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir. 2006); Xue Hong
20 Yang v. U.S. Dep’t of Justice,
426 F.3d 520, 523 (2d Cir.
21 2005).
5
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
6
