Filed: Jul. 07, 2014
Latest Update: Mar. 02, 2020
Summary: 13-1048 Lian v. Holder BIA Nelson, I.J. A089 855 319 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 NO
Summary: 13-1048 Lian v. Holder BIA Nelson, I.J. A089 855 319 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 NOT..
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13-1048
Lian v. Holder
BIA
Nelson, I.J.
A089 855 319
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 7th day of July, two thousand fourteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 REENA RAGGI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 LONG CHUN LIAN,
14 Petitioner,
15
16 v. 13-1048
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Long Chun Lian, pro se, Brooklyn,
24 New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
28 Assistant Director; Tracey N.
29 McDonald, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DISMISSED in part and DENIED in part.
5 Long Chun Lian, a native and citizen of China, seeks
6 review of a February 28, 2013 decision of the BIA affirming
7 the February 23, 2011 decision of an Immigration Judge
8 (“IJ”), denying his application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Long Chun Lian, No. A089 855 319 (B.I.A.
11 Feb. 28, 2013), aff’g No. A089 855 319 (Immig. Ct. N.Y. City
12 Feb. 23, 2011). We assume the parties’ familiarity with the
13 underlying facts and procedural history of this case.
14 Under the circumstances of this case, we have reviewed
15 both the BIA’s and IJ’s decisions. See Zaman v. Mukasey,
16 514 F.3d 233, 237 (2d Cir. 2008). The applicable standards
17 of review are well established. See 8 U.S.C.
18 § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey,
534 F.3d
19 162, 165-66 (2d Cir. 2008).
20 We dismiss the petition as to asylum because we lack
21 jurisdiction to review the agency’s determination that
22 Lian’s asylum application is untimely. See 8 U.S.C.
23 § 1158(a)(2)(B), (3). Although we retain jurisdiction to
2
1 review “constitutional claims or questions of law,” 8 U.S.C.
2 § 1252(a)(2)(D), Lian argues only that his relative’s
3 testimony should have been sufficient to establish his time
4 of entry. Although Lian uses the words “due process,” his
5 argument merely disputes the agency’s factual findings and
6 does not raise a reviewable constitutional claim. See Xiao
7 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 333 (2d Cir.
8 2006).
9 We deny the petition as to withholding of removal and
10 CAT relief because the agency’s adverse credibility
11 determination is supported by substantial evidence. The
12 adverse credibility determination is supported by
13 inconsistencies in the record and omissions in Lian’s asylum
14 application. First, the agency reasonably relied on Lian’s
15 omission of information regarding past harm from his
16 application. See Xiu Xia
Lin, 534 F.3d at 164 (“in
17 evaluating an . . . applicant’s credibility, an IJ may rely
18 on omissions and inconsistencies”); see also 8 U.S.C.
19 §§ 1158(b)(1)(B)(iii) (“a trier of fact may base a
20 credibility determination on . . . the consistency between
21 the applicant’s or witness’s written and oral statements ...
22 [and] the internal consistency of each such statement”).
3
1 The application states that Lian was beaten once, but Lian
2 testified that he was beaten three or four times. Whether
3 Lian’s failure to identify each beating in his application
4 is considered an omission, or if the application is
5 considered inconsistent with his testimony, this discrepancy
6 supports the adverse credibility determination. Lian’s
7 explanation–merely a restatement that he did not include the
8 information–was insufficient to compel a reasonable fact
9 finder to conclude that his testimony was credible. See
10 Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.
11 2005)(providing that a petitioner “must demonstrate that his
12 explanation for a discrepancy would compel a reasonable
13 fact-finder to credit his testimony”) (internal quotation
14 marks and citations omitted)).
15 The agency also reasonably relied on the implausibility
16 of Lian’s testimony about his church attendance in New York.
17 Lian testified that he lived in Florida from 2008 to 2010,
18 but attended church in New York during that period by taking
19 a 30-hour round-trip bus ride two or three times each month.
20 Although the claimed travel may have been literally
21 possible, the agency did not err in finding Lian’s testimony
22 about it implausible. In addition, testimony regarding his
23 salary was incompatible with the amount he would have had to
4
1 spend on bus tickets and on payments to the snakehead who
2 transported him to the United States. Wensheng Yan v.
3 Mukasey, 509 F.3d 63, 67 (2d Cir. 2009) (holding that where
4 the IJ’s findings are “tethered to record evidence, and
5 there is nothing else in the record from which a firm
6 conviction of error could properly be derived,” an inherent
7 implausibility finding should not be disturbed).
8 Given Lian’s omissions regarding past harm as well as
9 his implausible testimony regarding his church attendance,
10 the record supports the agency’s adverse credibility
11 determination. See Xiu Xia
Lin, 534 F.3d at 167. Because
12 all of Lian’s claims share the same factual predicate, the
13 adverse credibility determination is also dispositive of his
14 claims for withholding of removal and CAT relief. See Paul
15 v. Gonzales,
444 F.3d 148, 155-57 (2d Cir. 2006).
16 For the foregoing reasons, the petition for review is
17 DISMISSED, in part, and DENIED, in part. As we have
18 completed our review, the pending motion for a stay of
19 removal in this petition is DISMISSED as moot.
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
5
