Filed: Feb. 08, 2018
Latest Update: Mar. 03, 2020
Summary: 16-59 Liu v. Sessions BIA Poczter, IJ A205 614 781 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: 16-59 Liu v. Sessions BIA Poczter, IJ A205 614 781 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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16-59
Liu v. Sessions
BIA
Poczter, IJ
A205 614 781
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
8th day of February, two thousand eighteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
JIA LIU,
Petitioner,
v. 16-59
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Brian P. Fredericks, New York, NY.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; M.
Jocelyn Lopez Wright, Senior
Litigation Counsel; Anthony J.
Messuri, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Jia Liu, a native and citizen of the People’s
Republic of China, seeks review of a December 9, 2015, decision
of the BIA affirming an April 8, 2014, decision of an Immigration
Judge (“IJ”) denying Liu’s application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Jia Liu, No. A 205 614 781 (B.I.A. Dec. 9, 2015),
aff’g No. A 205 614 781 (Immig. Ct. N.Y. City Apr. 8, 2014). We
assume the parties’ familiarity with the underlying facts and
procedural history in this case.
We have reviewed the IJ’s decision as supplemented by the
BIA. See Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
The standards of review are well established. See 8 U.S.C.
§ 1252(b)(4); Weng v. Holder,
562 F.3d 510, 513-14 (2d Cir.
2009); Cao v. Gonzales,
421 F.3d 149, 156-57 (2d Cir. 2005).
The agency primarily denied relief on credibility grounds.
The agency may, “[c]onsidering the totality of the
circumstances,” base a credibility finding on “the consistency
between the applicant’s or witness’s written and oral
statements . . . , the internal consistency of each such
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statement, the consistency of such statements with other
evidence of record . . . , and any inaccuracies or falsehoods
in such statements . . . .” 8 U.S.C. § 1158(b)(1)(B)(iii); Lin
v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008) (per curiam).
Here, the IJ’s adverse credibility determination is supported
by substantial evidence.
Liu’s omission of his alleged detention and beating from
his asylum application and direct examination testimony
provides sufficient support for the agency’s conclusion that
he was not credible. 8 U.S.C. § 1158(b)(1)(B)(iii); see Ye v.
Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (per
curiam) (concluding that a material inconsistency regarding an
aspect of a claim that serves as an example of the persecution
from which an applicant seeks asylum affords substantial
evidence in support of an adverse credibility finding);
Lin,
534 F.3d at 166 n.3 (holding that, for purposes of analyzing
a credibility determination, “[a]n inconsistency and an
omission are . . . functionally equivalent”). Liu’s allegation
on cross-examination that he was hit with batons, detained, and
starved was his sole allegation of physical harm. Liu’s
written statement reported only that he was fired and threatened
with prosecution. The agency was not required to accept Liu’s
explanation that all threats were tantamount to being hit and
3
detained. Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)
(explaining that, on appeal, “[a] petitioner must do more than
offer a plausible explanation for his inconsistent statements
to secure relief; he must demonstrate that a reasonable
fact-finder would be compelled to credit his testimony.”
(internal quotation marks and citations omitted)). The IJ’s
adverse credibility determination is bolstered by Liu’s failure
to submit any corroborative evidence of his employment or his
detention and beating. See Yang v. Gonzales,
496 F.3d 268, 273
(2d Cir. 2007) (per curiam) (“An applicant’s failure to
corroborate his or her testimony may bear on credibility,
because the absence of corroboration in general makes an
applicant unable to rehabilitate testimony that has already
been called into question.”).
We find no error in the agency’s alternative conclusion
that Liu did not demonstrate an objectively reasonable fear of
future persecution in China on account of his religion. He did
not prove that Chinese officials were aware or would become
aware of his Christianity. See Leng v. Mukasey, 528 F.3d 135,
143 (2d Cir. 2008) (per curiam). In addition, record evidence
showed that millions of Christians in China practice in
unregistered churches and that in some areas, authorities did
not interfere with that practice. Moreover, the reports do not
4
reveal any incidents of detention or mistreatment of
underground church members or proselytizers in Liu’s home
province. See Shao v. Mukasey, 546 F.3d 138, 142, 149, 169-70
(2d Cir. 2008) (finding no error in BIA’s evidentiary framework
requiring applicant to demonstrate that similarly situated
individuals face persecution in his or her local area when
enforcement varies by region); Santoso v. Holder,
580 F.3d 110,
112 (2d Cir. 2009) (per curiam) (denying petition where agency
considered background materials and rejected pattern or
practice claim because violence was localized, not
countrywide).
Finally, the BIA did not abuse its discretion in denying
Liu’s motion to remand. Liu did not comply with the procedural
requirements for raising an ineffective assistance of counsel
claim. Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 47 (2d Cir.
2005) (requiring substantial compliance with the requirements
set forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988)).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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