Filed: Sep. 19, 2016
Latest Update: Mar. 03, 2020
Summary: 15-213 Liu v. Lynch BIA Poczter, IJ A200 172 825 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
Summary: 15-213 Liu v. Lynch BIA Poczter, IJ A200 172 825 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 NOTATIO..
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15-213
Liu v. Lynch
BIA
Poczter, IJ
A200 172 825
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 19th day of September, two thousand sixteen.
5
6 PRESENT:
7 REENA RAGGI,
8 SUSAN L. CARNEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 XUN JIAN LIU,
14 Petitioner,
15
16 v. 15-213
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New
24 York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General, Civil
28 Division; Cindy Ferrier, Assistant
29 Director; Kimberly A. Burdge, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 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 is
4 DENIED.
5 Petitioner Xun Jian Liu, a native and citizen of China,
6 seeks review of a January 6, 2015 decision of the BIA affirming
7 an April 24, 2013 decision of an Immigration Judge (“IJ”)
8 denying Liu’s application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”). In
10 re Xun Jian Liu, No. A200 172 825 (B.I.A. Jan. 6, 2015), aff’g
11 No. A200 172 825 (Immig. Ct. N.Y.C. Apr. 24, 2013).
12 Under the circumstances of this case, we review both the
13 BIA and IJ decisions “for the sake of completeness,” Wangchuck
14 v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006),
15 applying well established standards of review, see 8 U.S.C. §
16 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d
17 Cir. 2008) (reviewing adverse credibility determination for
18 substantial evidence). In doing so, we assume the parties’
19 familiarity with the underlying facts and procedural history
20 in this case.
21 For applications such as Liu’s, governed by the REAL ID Act
22 of 2005, the agency may, “[c]onsidering the totality of the
23 circumstances,” base a credibility finding on an asylum
2
1 applicant’s “demeanor, candor, or responsiveness,” the
2 plausibility of his account, and inconsistencies in his
3 statements and other record evidence “without regard to
4 whether” the inconsistencies go “to the heart of the applicant’s
5 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534
6 F.3d at 163-64. “We defer . . . to an IJ’s credibility
7 determination unless, from the totality of the circumstances,
8 it is plain that no reasonable fact-finder could make such an
9 adverse credibility ruling.” Xiu Xia
Lin, 534 F.3d at 167.
10 Further, “[a] petitioner must do more than offer a plausible
11 explanation for his inconsistent statements to secure relief;
12 he must demonstrate that a reasonable fact-finder would be
13 compelled to credit his testimony.” Majidi v. Gonzales, 430
14 F.3d 77, 80 (2d Cir. 2005) (internal quotation marks and
15 citations omitted). By these standards, the agency’s adverse
16 credibility determination is supported by substantial
17 evidence.
18 Liu first challenges the factual bases for the agency’s
19 findings of inconsistency. The agency relied on discrepancies
20 between Liu’s testimony and the record of his asylum interview.
21 An adverse credibility determination may be supported by the
22 record of an asylum interview if the record contains a
23 “meaningful, clear, and reliable summary of the statements made
3
1 by [the applicant] at the interview.” Diallo v. Gonzales, 445
2 F.3d 624, 632 (2d Cir. 2006) (citation and internal quotation
3 marks omitted); see also 8 U.S.C. § 1158(b)(1)(B)(iii)
4 (providing that adverse credibility determination may be based
5 on “consistency between the applicant’s . . . written and oral
6 statements (whenever made and whether or not under oath, and
7 considering the circumstances under which the statements were
8 made)”).
9 Liu argues that the interview record is unreliable because
10 it is handwritten, unorganized, and in shorthand. However, the
11 notes are legible and the shorthand is easy to understand.
12 Further, the notes are not disorganized, generally following
13 a question-and-answer structure. These are sufficient indicia
14 of reliability for the agency to have awarded the notes
15 evidentiary weight. Cf.
Diallo, 445 F.3d at 632 (deeming
16 unreliable “the informal, personal notations of the asylum
17 officer that were randomly organized, cryptic to all but the
18 note-taker, and partially illegible” (internal quotation marks
19 omitted)). Although Liu claims that he had difficulty
20 understanding the language used at his asylum interview, the
21 record of the interview does not indicate that Liu had any
22 genuine difficulty answering the questions posed and
23 memorializes his detailed responses.
4
1 As the record is reliable, the agency was entitled to
2 consider the inconsistencies between it and Liu’s testimony.
3 At the interview, Liu stated that his parents were arrested and
4 detained for a month because they were practicing Christians,
5 but at his hearing, Liu testified, first, that his parents were
6 not Christian, but then, that they were Christian, but had
7 suffered no persecution. Liu also stated during his asylum
8 interview that he had lived with his grandmother after his
9 parents were arrested, but later testified that he had never
10 lived with his grandmother.1 He had no explanation for either
11 of these inconsistencies. There were also inconsistencies
12 between Liu’s testimony and a letter from his parents regarding
13 whether they tried to persuade him to abandon Christianity after
14 his detention. Liu’s explanation for this inconsistency was
15 not compelling and, therefore, the agency’s reliance on it was
16 not unreasonable. See Majidi, 430 F.3d at 80.
17 Liu argues that the IJ failed to consider specific items
18 of documentary evidence that he contends corroborated his
19 testimony. “[W]e presume that an IJ has taken into account all
1
Liu correctly observes that the IJ may have misinterpreted the
interview notes in making its ruling in this regard, but any
such misinterpretation was immaterial and remand to correct the
error would be futile. See Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 339 (2d Cir. 2006) (holding that remand
is futile when court can “confidently predict” agency would
reach the same decision absent any errors).
5
1 of the evidence before [her], unless the record compellingly
2 suggests otherwise,” Xiao Ji Chen, 434 F.3d at 159 n.13, and
3 we do not require that the agency “expressly parse or refute
4 on the record each . . . piece of evidence,” Wei Guang Wang v.
5 Bd. of Immigration Appeals,
437 F.3d 270, 275 (2d Cir. 2006).
6 Here, the IJ stated that she “evaluated the evidence in the
7 record” and concluded that it did not resolve the problems with
8 Liu’s credibility. Indeed, the evidence Liu cites fails to
9 resolve the major inconsistencies in his testimony. Thus, the
10 record does not “compellingly suggest” that the IJ did not
11 evaluate this evidence, and we identify no error in the failure
12 to mention specific items of evidence here. Xiao Ji Chen,
434
13 F.3d at 159 n.13.
14 Finally, the agency reasonably relied on differences
15 between Liu’s demeanor on direct and cross-examination.
16 “[D]emeanor is paradigmatically the sort of evidence that a
17 fact-finder is best positioned to evaluate,” Li Zu Guan v. INS,
18
453 F.3d 129, 140 (2d Cir. 2006), and accordingly we give
19 “particular deference to credibility determinations that are
20 based on the adjudicator’s observation of the applicant’s
21 demeanor.” Jin Chen v. U.S. Dep’t of Justice,
426 F.3d 104,
22 113 (2d Cir. 2005). Here, the IJ found that Liu testified in
23 “a direct and cogent manner” on direct examination but that,
6
1 on cross-examination, he became “evasive to the point where the
2 Court became concerned that [he] did not understand the
3 interpreter.” Liu’s argument that his demeanor changed
4 because of language difficulties is refuted by the fact that
5 Liu had little difficulty with questions on direct examination,
6 as well as the IJ’s explicit confirmation at the hearing that
7 Liu’s best language was Mandarin (the language used by the
8 interpreter) and that Liu understood the interpreter. The
9 statements Liu points to as evidence he did not understand the
10 interpreter are either inapposite or indicate that Liu did, in
11 fact, sufficiently understand the interpreter.
12 Given these inconsistency and demeanor findings, we
13 identify no basis to disturb the IJ’s adverse credibility
14 determination, see Xiu Xia Lin, 534 F.3d at 165-66, which is
15 dispositive of Liu’s claims for asylum, withholding of removal,
16 and CAT relief, see Paul v. Gonzales,
444 F.3d 148, 156-57 (2d
17 Cir. 2006).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of removal
20 that the Court previously granted in this petition is VACATED,
21 and any pending motion for a stay of removal in this petition
22 is DISMISSED as moot. Any pending request for oral argument
23 in this petition is DENIED in accordance with Federal Rule of
7
1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
2 34.1(b).
3 FOR THE COURT:
4 Catherine O=Hagan Wolfe, Clerk of Court
8
