Filed: Sep. 11, 2013
Latest Update: Mar. 28, 2017
Summary: 11-4557 Liu v. Holder BIA VanWyke, IJ A088 121 646 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 NOTA
Summary: 11-4557 Liu v. Holder BIA VanWyke, IJ A088 121 646 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..
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11-4557
Liu v. Holder
BIA
VanWyke, IJ
A088 121 646
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 11th day of September, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 JON O. NEWMAN,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 JUN LIU,
14 Petitioner,
15
16 v. 11-4557
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, NY
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Luis E. Perez,
27 Senior Litigation Counsel; Don G.
28 Scroggin, Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, 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 Petitioner Jun Liu seeks review of an October 11, 2011
6 order of the BIA affirming the October 14, 2009 decision of
7 an Immigration Judge (“IJ”) denying his application for
8 asylum, withholding of removal, and relief under the
9 Convention Against Torture (“CAT”). In re Jun Liu, No. A088
10 121 646 (B.I.A. Oct. 11, 2011), aff’g No. A088 121 646
11 (Immig. Ct. N.Y. City Oct. 14, 2009). We assume the
12 parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 the decision of the IJ as supplemented by the BIA. See Yan
16 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
17 applicable standards of review are well-established. See
18 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d
19 510, 513 (2d Cir. 2009).
20 Insofar as Liu challenges the denial of asylum and CAT
21 relief, we dismiss his petition for review for lack of
22 jurisdiction. We lack jurisdiction to review the agency’s
2
1 denial of asylum because Liu’s argument merely disputes the
2 agency’s fact-finding regarding the timeliness of his asylum
3 application, see 8 U.S.C. § 1158(a)(3), and we lack
4 jurisdiction to review the agency’s denial of CAT relief
5 because Liu did not challenge the denial of that relief
6 before the BIA. See 8 U.S.C. § 1252(d)(1); Karaj v.
7 Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).
8 Liu’s challenges to the agency’s denial of withholding
9 of removal are without merit. As an initial matter, Liu
10 argues that he was eligible for withholding of removal
11 because he demonstrated “other resistance” to China’s family
12 planning policy under Shi Liang Lin v. U.S. Dep’t of
13 Justice,
494 F.3d 296 (2d Cir. 2007) (en banc). This issue
14 was not raised before the BIA, and will not be considered
15 here. See Lin Zhong v. U.S. Dep’t of Justice,
480 F.3d 104,
16 119-20 (2d Cir. 2007).
17 As to the claim based on prosecution for membership in
18 an underground church, Liu challenges the adverse
19 credibility finding. For applications governed by the REAL
20 ID Act, such as Liu’s, the agency may base a credibility
21 finding on an applicant’s demeanor, the plausibility of his
22 account, or inconsistencies in his statements, without
3
1 regard to whether they go “to the heart of the applicant’s
2 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Substantial evidence
3 supports the agency’s adverse credibility determination.
4 Liu contends that the IJ and BIA placed too much weight
5 on his hesitancy in answering questions. Liu argued that it
6 can be explained by his lack of experience testifying in
7 court or through a translator. However, we defer to the
8 IJ’s assessment of Liu’s demeanor because the IJ had “the
9 unique advantage . . . of having heard directly from [him].”
10 See Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir.
11 2005)(citation omitted).
12 The IJ properly relied on the sketchiness of the asylum
13 application; however an IJ may rely on omissions in making a
14 credibility determination. See Xiu Xia Lin v. Mukasey, 534
15 F.3d 162, 166 n.3 (2d Cir. 2008). The BIA also relied on
16 the issuance of a Chinese passport to Liu in the United
17 States; however we defer to the factfinder’s inference that
18 the Chinese government would likely not issue a passport to
19 a wanted fugitive. See Siewe v. Gonzales,
480 F.3d 160,
20 167-68 (2d Cir. 2007).
21 Liu cites background evidence demonstrating the
22 persecution of some Christians in China to corroborate his
4
1 testimony. However, nothing suggests that the agency did
2 not take into account this evidence, see Xiao Ji Chen, 471
3 F.3d 315, 337 n.17 (2d Cir. 2006)(presuming that the agency
4 “has taken into account all of the evidence before [it],
5 unless the record compellingly suggests otherwise”); and the
6 persecution of some Christians in China would not rebut the
7 finding that Liu’s testimony did not credibly establish that
8 he would be subjected to such persecution. In sum, the
9 agency’s adverse credibility determination is supported by
10 substantial evidence and supports its denial of Liu’s
11 application for withholding of removal based on his status
12 as a Christian.
13 For the foregoing reasons, the petition for review is
14 DISMISSED in part and DENIED in part. As we have completed
15 our review, the pending motion for a stay of removal in this
16 petition is DISMISSED as moot.
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
5
