Filed: May 15, 2017
Latest Update: Mar. 03, 2020
Summary: 15-476 Liu v. Sessions BIA Vomacka, IJ A200 731 894/895 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: 15-476 Liu v. Sessions BIA Vomacka, IJ A200 731 894/895 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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15-476
Liu v. Sessions
BIA
Vomacka, IJ
A200 731 894/895
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 15th day of May, two thousand seventeen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 YI LIU, QI ZHAO,
14 Petitioners,
15
16 v. 15-476
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONERS: Gary J. Yerman, New York, New York.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; John W.
27 Blakeley, Assistant Director;
28 Christina J. Martin, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 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 is
4 DENIED.
5 Petitioners Yi Liu and Qi Zhao, natives and citizens of the
6 People’s Republic of China, seek review of a January 28, 2015,
7 decision of the BIA affirming an August 16, 2013, decision of
8 an Immigration Judge (“IJ”) denying asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Yi Liu, Qi Zhao, Nos. A200 731 894/895 (B.I.A.
11 Jan. 28, 2015), aff’g Nos. A200 731 894/895 (Immig. Ct. N.Y.
12 City Aug. 16, 2013). We assume the parties’ familiarity with
13 the underlying facts and procedural history in this case. Under
14 the circumstances of this case, we have reviewed the IJ’s
15 decision as modified by the BIA. Xue Hong Yang v. U.S. Dep’t
16 of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
17 The agency may, “[c]onsidering the totality of the
18 circumstances,” base a credibility finding on an applicant’s
19 demeanor, inconsistencies in her statements, and other record
20 evidence “without regard to whether” they go “to the heart of
21 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu
22 Xia Lin v. Mukasey,
534 F.3d 162, 163-64 (2d Cir. 2008). We
2
1 review the agency’s factual findings, including adverse
2 credibility determinations, under the substantial evidence
3 standard, treating them as “conclusive unless any reasonable
4 adjudicator would be compelled to conclude to the contrary.”
5 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin, 534 F.3d at 165.
6 We afford “particular deference” to an IJ’s credibility
7 determinations and defer to them “unless, from the totality of
8 the circumstances, it is plain that no reasonable fact-finder
9 could make such an adverse credibility ruling.”
Id. at 166–
10 67 (internal quotation marks omitted).
11 Here, the agency reasonably found Liu not credible based
12 on inconsistencies between her testimony and her medical
13 documents regarding past pregnancies. Specifically, Liu’s
14 testimony that both of her pregnancies in China were terminated
15 involuntarily, one by abortion medication and the other by
16 forced miscarriage, conflicted with hospital information she
17 provided when seeking prenatal care during her pregnancy in the
18 United States. In contrast to her testimony, a section of Liu’s
19 U.S. prenatal medical records lists only two pregnancies and
20 identifies only one outcome, an “elective” abortion. This
21 record lists no “involuntary” or “spontaneous” abortion. The
22 agency found Liu not credible based on this inconsistency and
3
1 reasonably concluded that, even if Liu’s medical record
2 referred to her two pregnancies in China and she had not
3 understood that a spontaneous abortion meant miscarriage, the
4 rest of her medical records were inconsistent with her claim
5 because “the outcome of her second pregnancy in China was not
6 accounted for in some form in her medical records in the United
7 States.” [CAR 4]. These inconsistencies, which relate to the
8 basis of the petitioners’ claim, are sufficient to support the
9 adverse credibility determination. See Xian Tuan Ye v. Dep’t
10 of Homeland Sec., 446 F.3d 289, 294-95 (2d Cir. 2006).
11 The agency also did not err in concluding that Liu’s
12 corroborating evidence was insufficient to rehabilitate her
13 credibility. See Biao Yang v. Gonzales,
496 F.3d 268, 273 (2d
14 Cir. 2007) (recognizing that “[a]n applicant’s failure to
15 corroborate his or her testimony may bear on credibility,
16 because the absence of corroboration in general makes an
17 applicant unable to rehabilitate testimony that has already
18 been called into question” or is viewed as suspicious). The
19 agency reasonably gave diminished weight to Liu’s corroborating
20 evidence: the letter from her mother was from an interested
21 party unavailable for cross-examination, and the letter from
22 a driver for her former employer in China was not accompanied
4
1 by any proof of employment. See Xiao Ji Chen v. U.S. Dep't of
2 Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that the
3 weight accorded to evidence lies largely within the agency’s
4 discretion).
5 Given the inconsistency and corroboration findings, we
6 identify no basis to disturb the agency’s adverse credibility
7 determination, see Xiu Xia
Lin, 534 F.3d at 165-66, which is
8 dispositive of petitioners’ claims for asylum, withholding of
9 removal, and CAT relief, see Paul v. Gonzales,
444 F.3d 148,
10 156-57 (2d Cir. 2006).
11 We have reviewed the other arguments raised by the
12 petitioners and find them to be without merit. For the
13 foregoing reasons, the petition for review is DENIED. As we
14 have completed our review, any stay of removal that the Court
15 previously granted in this petition is VACATED, and any pending
16 motion for a stay of removal in this petition is DISMISSED as
17 moot. Any pending request for oral argument in this petition
18 is DENIED in accordance with Federal Rule of Appellate Procedure
19 34(a)(2), and Second Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
5
