Filed: Mar. 13, 2017
Latest Update: Mar. 03, 2020
Summary: 15-2868 Liang v. Sessions BIA Laforest, IJ A205 235 719 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
Summary: 15-2868 Liang v. Sessions BIA Laforest, IJ A205 235 719 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 ..
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15-2868
Liang v. Sessions
BIA
Laforest, IJ
A205 235 719
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 13th day of March, two thousand seventeen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PIERRE N. LEVAL,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _____________________________________
12
13 ZHOU HUI LIANG,
14 Petitioner,
15
16 v. 15-2868
17 NAC
18 JEFFERSON B. SESSIONS, III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Stuart Altman, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Terri J.
27 Scadron, Assistant Director; Wendy
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Jefferson B. Sessions, III, is automatically substituted for former Attorney
General Loretta E. Lynch as Respondent.
1 Benner-León, Trial Attorney, Office
2 of Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Zhou Hui Liang, a native and citizen of the
11 People’s Republic of China, seeks review of an August 27, 2015,
12 decision of the BIA, affirming a December 3, 2014, decision of
13 an Immigration Judge (“IJ”) denying Liang’s application for
14 asylum, withholding of removal, and relief under the Convention
15 Against Torture (“CAT”). In re Zhou Hui Liang, No. A205 235
16 719 (B.I.A. Aug. 27, 2015), aff’g No. A205 235 719 (Immig. Ct.
17 N.Y. City Dec. 3, 2014). We assume the parties’ familiarity
18 with the underlying facts and procedural history in this case.
19 Under the circumstances of this case, we have reviewed both
20 the IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales, 432
21 F.3d 391, 394 (2d Cir. 2005). The applicable standards of
22 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
23 Xiu Xia Lin v. Mukasey,
534 F.3d 162, 165-66 (2d Cir. 2008).
2
1 The agency may base a credibility determination on
2 inconsistencies in an applicant’s testimony and among his
3 testimony, prior statements, and supporting evidence. See 8
4 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
5 “We defer . . . to an IJ’s credibility determination unless,
6 from the totality of the circumstances, it is plain that no
7 reasonable fact-finder could make such an adverse credibility
8 ruling.” Xiu Xia
Lin, 534 F.3d at 167. As discussed below,
9 the adverse credibility determination rests on substantial
10 evidence.
11 The agency reasonably relied on an inconsistency
12 concerning the date of Liang’s arrest, an event central to his
13 claim of past persecution. See 8 U.S.C. § 1158(b)(1)(B)(iii);
14 Xiu Xia
Lin, 534 F.3d at 167; Xian Tuan Ye v. Dep’t of Homeland
15 Sec.,
446 F.3d 289, 295 (2d Cir. 2006) (holding that an
16 inconsistency material to the alleged persecution that is the
17 basis of a claim is substantial evidence). Liang testified
18 that he was arrested on June 3, 2011, during a church service.
19 When prompted by his attorney, Liang changed the date to March
20 6, 2011, explaining that he was “very nervous.” The IJ
21 reasonably rejected this explanation, noting the difference in
22 seasons between March and June and concluding that “[i]nverting
3
1 the month and day is more likely to be an error committed by
2 someone who has memorized a statement.” See Majidi v.
3 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
4 do more than offer a plausible explanation for his inconsistent
5 statements to secure relief; he must demonstrate that a
6 reasonable fact-finder would be compelled to credit his
7 testimony.” (quoting Zhou Yun Zhang v. INS,
386 F.3d 77, 76 (2d
8 Cir. 2004))). Nor would the agency be compelled to accept
9 Liang’s current explanation that he ultimately gave the date
10 consistent with his application, as it does not account for the
11 initial inconsistent testimony.
Id.
12 The agency also reasonably relied on inconsistencies
13 between Liang’s testimony and evidence concerning his church
14 attendance in the United States. Liang’s testimony that he
15 attended church “once a week or once every two weeks” clearly
16 conflicted with a letter from his church that he attended only
17 16 times between April 2012 and November 2014. The IJ was not
18 compelled to accept Liang’s response that he sometimes forgot
19 to sign in when he arrived late, as it did not account for the
20 substantial discrepancy between the 16 times stated in the
21 church’s letter and the 60 to 120 times to which he testified.
22 See Wensheng Yan v. Mukasey,
509 F.3d 63, 66 (2d Cir. 2007)
4
1 (“[I]n assessing the credibility of an asylum applicant’s
2 testimony, an IJ is entitled to consider whether the applicant’s
3 story is inherently implausible.”). Moreover, as the IJ
4 pointed out, this inconsistency was particularly troubling
5 because the church’s letter reflected that Liang attended
6 church less frequently following his baptism in April 2012,
7 calling into question the sincerity of his religious beliefs.
8 Liang’s credibility concerning his church attendance in
9 the United States was further undermined by his lack of recall
10 of a sermon he heard two days before he testified. Liang’s
11 argument, that his ability to name the pastor of the church
12 renders his testimony credible, is not compelling because it
13 does not actually explain his failure to testify to any detail
14 regarding the sermon. See Majidi, 430 F.3d at 80.
15 Having questioned Liang’s credibility, the agency did not
16 err in concluding that Liang’s corroborating evidence was
17 insufficient to rehabilitate his testimony. See Biao Yang v.
18 Gonzales,
496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s
19 failure to corroborate his . . . testimony may bear on
20 credibility, because the absence of corroboration in general
21 makes an applicant unable to rehabilitate testimony that has
22 already been called into question.”). “We defer to the
5
1 agency’s determination of the weight afforded to an alien’s
2 documentary evidence.” Y.C. v. Holder, 741 F.3d 324, 334 (2d
3 Cir. 2013). The agency reasonably accorded diminished weight
4 to letters from Liang’s mother and church friend. The letters
5 were unsworn, prepared for the purpose of litigation and from
6 interested parties not subject to cross examination. See
7 Matter of H-L-H- & Z-Y- Z-, 25 I. & N. Dec. 209, 215 (B.I.A.
8 2010) (agency may give little weight to document drafted by
9 interested witness not subject to cross examination), rev’d on
10 other grounds by Hui Lin Huang v. Holder,
677 F.3d 130 (2d Cir.
11 2012).
12 Liang argues that the agency erred in relying on a purported
13 inconsistency concerning his father’s profession. Liang’s
14 application and testimony reported that his father was a
15 fisherman, but his household registration booklet listed his
16 father’s profession as a “farmer.” On appeal to the BIA, Liang
17 submitted evidence that fishing is a type of farming. Even
18 assuming that the agency erred in relying on this inconsistency,
19 the error is not fatal because the totality of the circumstances
20 outlined above nonetheless supports the adverse credibility
21 determination. See Lianping Li v. Lynch, No. 15-219,
2016 WL
22 5799651, at *3 (2d Cir. Oct. 5, 2016); Siewe v. Gonzales, 480
6
1 F.3d 160, 166-67 (2d Cir. 2007). Given the multiple
2 inconsistencies related to the bases of the claims and the lack
3 of reliable corroborating evidence, it cannot be said “that no
4 reasonable fact-finder could make such a credibility ruling.”
5 Xiu Xia
Lin, 534 F.3d at 167. The credibility ruling is
6 dispositive of asylum, withholding of removal, and CAT relief
7 because all three forms of relief are based on the same factual
8 predicate. Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir.
9 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
7
