Filed: Jul. 11, 2012
Latest Update: Mar. 26, 2017
Summary: 11-2029-ag Liu v. Holder BIA Vomacka, IJ A088 783 121/122 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 T
Summary: 11-2029-ag Liu v. Holder BIA Vomacka, IJ A088 783 121/122 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 TH..
More
11-2029-ag
Liu v. Holder
BIA
Vomacka, IJ
A088 783 121/122
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 11th day of July, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 XIUZHI LIU, DEXIU LIU,
14 Petitioners,
15
16 v. 11-2029-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONERS: Thomas V. Massucci, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Nancy E. Friedman, Senior
28 Litigation Counsel; Christina Bechak
29 Parascandola, Trial Attorney, Office
30 of Immigration Litigation, U.S.
31 Department of Justice, Washington,
32 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DISMISSED in part and DENIED in part.
5 Petitioners Xiuzhi Liu and Dexiu Liu, natives and
6 citizens of the People’s Republic of China, seek review of
7 the April 21, 2011, decision of the BIA affirming the August
8 26, 2009, decision of an Immigration Judge (“IJ”),
9 pretermitting Xiuzhi’s application for asylum as untimely
10 and denying her withholding of removal and relief under the
11 Convention Against Torture (“CAT”). In re Xiuzhi Liu, Dexiu
12 Liu, Nos. A088 783 121/122 (B.I.A. Apr. 21, 2011), aff’g
13 Nos. A088 783 121/122 (Immig. Ct. N.Y. City Aug. 26, 2009).*
14 We assume the parties’ familiarity with the underlying facts
15 and procedural history in this case.
16 As an initial matter, we lack jurisdiction to review
17 the agency’s decision insofar as it pretermitted Xiuzhi’s
18 untimely asylum application. See 8 U.S.C. § 1158(a)(3).
19 However, we may review Xiuzhi’s challenges to the agency’s
20 denial of withholding of removal and CAT relief.
*
Dexiu Liu was included as a derivative beneficiary
on Xiuzhi Liu’s asylum application. See 8 U.S.C.
§ 1158(b)(3)(A) (providing that the spouse of an alien
granted asylum may receive derivative asylee status).
2
1 Under the circumstances of this case, we have reviewed
2 both the IJ’s and the BIA’s opinions “for the sake of
3 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
4 2008). The applicable standards of review are well
5 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia
6 Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008); Aliyev
7 v. Mukasey,
549 F.3d 111, 115 (2d Cir. 2008).
8 Substantial evidence supports the agency’s
9 determination that petitioners were not credible as to their
10 assertion that Xiuzhi had suffered past persecution on
11 account of her religion and violation of China’s family
12 planning policy. For asylum applications governed by the
13 REAL ID Act, such as the application in this case, the
14 agency may, considering the totality of the circumstances,
15 base a credibility finding on an asylum applicant’s
16 demeanor, the plausibility of her account, and
17 inconsistencies in record evidence, without regard to
18 whether they go “to the heart of the applicant’s claim.”
19 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534
20 F.3d at 163-64.
21 In finding petitioners not credible, the agency
22 reasonably relied in part on discrepancies between their
3
1 testimony regarding their dates of arrival in the United
2 States, their interactions with family planning officials,
3 and their flight into hiding. See 8 U.S.C.
4 § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-
5 64, 166-67. Moreover, a reasonable factfinder would not be
6 compelled to credit petitioners’ explanations for these
7 inconsistencies. See Majidi v. Gonzales, 430 F.3d 77, 80-81
8 (2d Cir. 2005).
9 In addition, the agency reasonably questioned the
10 plausibility of certain aspects of petitioners’ testimony,
11 including Dexiu’s assertion that, although village officials
12 sought to arrest him for nine years, they were unable to do
13 so despite the fact that he spent the majority of each of
14 those years working and living in that village, and only a
15 few months of those years “hiding” at his sister’s house.
16 See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Siewe v.
17 Gonzales,
480 F.3d 160, 168-69 (2d Cir. 2007) (holding that
18 an implausibility finding that is based on “speculation that
19 inheres in inference is not ‘bald’ if the inference is made
20 available to the factfinder by record facts, or even a
21 single fact, viewed in the light of common sense and
22 ordinary experience.”). Moreover, having questioned
23 petitioners’ credibility, the agency reasonably relied
4
1 further on their failure to provide evidence corroborating
2 their assertions that Xiuzhi’s abortion was performed by
3 force and that she suffered past persecution on account of
4 her religion. See Biao Yang v. Gonzales, 496 F.3d 268, 273
5 (2d Cir. 2007) (recognizing that an applicant’s failure to
6 corroborate testimony may bear on credibility, either
7 because the absence of particular corroborating evidence is
8 viewed as suspicious, or because the absence of
9 corroboration in general makes an applicant unable to
10 rehabilitate testimony that has already been called into
11 question).
12 Ultimately, the agency’s adverse credibility
13 determination regarding petitioners’ assertion of past
14 persecution was supported by substantial evidence. Although
15 the BIA interpreted the IJ’s adverse credibility
16 determination as disposing of Xiuzhi’s claim that she feared
17 future persecution, the IJ determined that, even assuming
18 that Xiuzhi was a practicing Christian and that she had
19 violated the family planning policy, she did not satisfy her
20 burden of demonstrating a likelihood that she would be
21 persecuted or tortured on those grounds. It would be futile
22 to remand for the BIA to correct its erroneous
23 interpretation of the IJ’s decision because petitioners do
5
1 not challenge the IJ’s determination that they failed to
2 establish a likelihood that Xiuzhi would be persecuted under
3 the family planning policy, and because, as discussed below,
4 the IJ reasonably determined that Xiuzhi failed to
5 demonstrate a likelihood of persecution on account of her
6 religion. See Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d
7 Cir. 2008) (finding that remand is futile where the Court
8 can confidently “predict that the agency would reach the
9 same decision absent the errors that were made” (internal
10 quotation marks and citations omitted)).
11 The IJ did not err in finding that the country
12 conditions evidence in the record failed to demonstrate a
13 likelihood that Xiuzhi would be persecuted on account of her
14 religion because, as he noted, the U.S. Department of State
15 report, “2008 Human Rights Report: China” (“2008 Report”),
16 indicated that the Chinese government’s treatment of
17 unregistered churches varied from region to region with
18 members of unregistered churches in some areas experiencing
19 harassment and detention and members in other regions
20 practicing without interference, and Xiuzhi did not submit
21 country conditions evidence regarding the treatment of
22 practitioners in her home province of Fujian. See Jian Xing
23 Huang v. INS,
421 F.3d 125, 129 (2d Cir. 2005) (“In the
6
1 absence of solid support in the record for [petitioner’s]
2 assertion that he will be subjected to [persecution], his
3 fear is speculative at best”); cf. 8 C.F.R. § 1208.16(b)(2)
4 (providing that an applicant for withholding of removal
5 cannot demonstrate a likelihood of persecution if “the
6 applicant could avoid a future threat to his life or freedom
7 by relocating to another part of the proposed country of
8 removal and, under all the circumstances, it would be
9 reasonable to expect the applicant to do so.”). Moreover,
10 the IJ did not err in finding that Xiuzhi’s claimed fear of
11 persecution was diminished by the fact that her unregistered
12 church group, which used to practice in members’ houses to
13 avoid detection by officials, had obtained a building for
14 worship with an address and phone number. Cf. Melgar de
15 Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding
16 that where similarly situated family members remain unharmed
17 in petitioner’s native country, a claimed fear of future
18 persecution is weakened). Accordingly, the IJ reasonably
19 denied Xiuzhi withholding of removal and CAT relief insofar
20 as those claims were based on her religion. See Paul v.
21 Gonzales,
444 F.3d 148, 156 (2d Cir. 2006).
22 For the foregoing reasons, the petition for review is
23 DISMISSED in part and DENIED in part. As we have completed
7
1 our review, the pending motion for a stay of removal in this
2 petition is DISMISSED as moot. Any pending request for oral
3 argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9
8
