Filed: May 19, 2011
Latest Update: Feb. 21, 2020
Summary: 10-2757-ag Liu v. Holder BIA Hom, IJ A088 663 118 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: 10-2757-ag Liu v. Holder BIA Hom, IJ A088 663 118 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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10-2757-ag
Liu v. Holder
BIA
Hom, IJ
A088 663 118
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 19th day of May,two thousand eleven.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 RICHARD C. WESLEY,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 DING HONG LIU,
14 Petitioner,
15
16 v. 10-2757-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: David A. Bredin, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Mary Jane Candaux,
27 Assistant Director; Laura M.L.
28 Maroldy, Trial Attorney, Office of
29 Immigration Litigation, Washington
30 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 DENIED.
5 Petitioner Ding Hong Liu, a native and citizen of
6 China, seeks review of the June 18, 2010 decision of the BIA
7 affirming the September 11, 2008 decision of Immigration
8 Judge (“IJ”) Sandy Hom denying his application for asylum,
9 withholding of removal, and CAT relief. In re Ding Hong
10 Liu, No. A088 663 118 (B.I.A. June 18, 2010), aff’g No. A088
11 663 118 (Immig. Ct. N.Y. City Sept. 11, 2008). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we review both
15 the BIA’s and IJ’s opinions. Yun-Zui Guan v. Gonzales, 432
16 F.3d 391, 394 (2d Cir. 2005). The applicable standards of
17 review are well-established. See 8 U.S.C.
18 § 1252(b)(4)(B); see also Salimatou Bah v. Mukasey,
529 F.3d
19 99, 110 (2d Cir. 2008); Shu Wen Sun v. BIA,
510 F.3d 377,
20 379 (2d Cir. 2007). “We defer to an IJ’s credibility
21 determination unless, from the totality of the
22 circumstances, it is plain that no reasonable fact-finder
23 could make such an adverse credibility ruling.” Xiu Xia Lin
2
1 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). For asylum
2 applications governed by the REAL ID Act, the agency may,
3 considering the totality of the circumstances, base a
4 credibility finding on an asylum applicant’s demeanor, the
5 plausibility of his account, and inconsistencies in his
6 statements, without regard to whether they go “to the heart
7 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii);
8 Xiu Xia
Lin, 534 F.3d at 163-64.
9 Substantial evidence supports the agency’s adverse
10 credibility determination. In finding Liu not credible, the
11 IJ reasonably relied in part on Liu’s unresponsive demeanor
12 while testifying about his claim for relief based on his
13 membership in an underground church in China. See
14 8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi v. Gonzales,
15
430 F.3d 77, 81 n.1 (2d Cir. 2005). The IJ also reasonably
16 relied on inconsistencies in the record regarding whether
17 Liu had ever been arrested and when government officials had
18 raided his underground church. See 8 U.S.C.
19 § 1158(b)(1)(B)(iii); see also Xiu Xia
Lin, 534 F.3d at 163-
20 64, 166-67. Moreover, a reasonable fact finder would not be
21 compelled to credit Liu’s explanations for these
22 inconsistencies. See
Majidi, 430 F.3d at 80-81. Thus, we
23 find no error in the agency’s denial of Liu’s application
3
1 for asylum, withholding of removal, and CAT relief on
2 credibility grounds insofar as those claims were based on
3 his purported membership in an underground church, see Paul
4 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006), and we need
5 not consider his additional arguments related to those
6 claims for relief.
7 As to Liu’s claim that he fears persecution and torture
8 for having illegally departed China, the agency reasonably
9 noted that punishment for violating a generally applicable
10 criminal law does not constitute persecution. See Saleh v.
11 U.S. Dep't of Justice,
962 F.2d 234, 239 (2d Cir. 1992).
12 Moreover, we have held that an applicant, such as Liu,
13 cannot demonstrate that he will more likely than not be
14 tortured “based solely on the fact that [he] is part of the
15 large class of persons who have left China illegally” and on
16 generalized evidence indicating that torture occurs in
17 Chinese prisons. mu Xiang Lin v. U.S. Dep’t of Justice, 432
18 F.3d 156, 160 (2d Cir. 2005) (emphasis in original).
19 Accordingly, we find no error in the agency’s denial of
20 Liu’s application for relief insofar as it was based on his
21 purportedly illegal departure from China.
22 For the foregoing reasons, the petition for review is
23 DENIED. As we have completed our review, any stay of
4
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 DENIED 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
5
