Filed: Jul. 17, 2020
Latest Update: Jul. 20, 2020
Summary: 13-3986 Liu v. Barr BIA Videla, IJ A098 472 361 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
Summary: 13-3986 Liu v. Barr BIA Videla, IJ A098 472 361 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..
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13-3986
Liu v. Barr
BIA
Videla, IJ
A098 472 361
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 17th day of July, two thousand twenty.
PRESENT:
REENA RAGGI,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
MINGJIN LIU,
Petitioner,
v. 13-3986
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, Esq., New York,
NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Shelley R. Goad,
Assistant Director; Carmel A.
Morgan, 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 Mingjin Liu, a native and citizen of the
People’s Republic of China, seeks review of a September 30,
2013 decision of the BIA affirming an April 24, 2012 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 Mingjin Liu, No.
A 098 472 361 (B.I.A. Sept. 30, 2013), aff’g No. A 098 472 361
(Immig. Ct. N.Y. City Apr. 24, 2012). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We have reviewed the decisions of both the IJ and the
BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
Cir. 2005). We review adverse credibility determinations for
substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei
Gao v. Sessions,
891 F.3d 67, 76 (2d Cir. 2018). “Considering
the totality of the circumstances, and all relevant factors,
a trier of fact may base a credibility determination on the
demeanor, candor, or responsiveness of the applicant . . . ,
the consistency between the applicant’s . . . written and
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oral statements . . . , the internal consistency of each such
statement, [and] the consistency of such statements with
other evidence of record . . . , without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of
the applicant’s claim . . . .” 8 U.S.C. § 1158(b)(1)(B)(iii).
“We defer . . . to an IJ’s credibility determination unless,
from the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
2008); accord Hong Fei
Gao, 891 F.3d at 76. Substantial
evidence supports the agency’s determination that Liu was not
credible as to his claim that he was persecuted because of
his opposition to and violation of Chinese family planning
laws.
The agency reasonably relied in part on Liu’s demeanor,
finding that parts of his testimony were evasive and not
responsive to the questions posed. We give particular
deference to the trier of fact’s assessment of demeanor. See
Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005). And
the record supports the IJ’s demeanor finding. For example,
the IJ asked Liu numerous times why he testified that he
worked in odd jobs from 1999 until he left China in 2005,
while his asylum application reported that he worked for a
3
construction company from May 2000 until December 2004 and
did not work after that. Liu did not answer the question,
asserting instead that he did individual work and did not
work for a construction company. Liu argues that he
attempted to explain the irregularity of his employment and
the IJ became frustrated and found his explanation lacking;
however, the IJ clarified that he understood Liu’s job
description, but was asking why Liu’s testimony was
inconsistent with his asylum application. Liu never
explained the inconsistency. In addition, despite multiple
questions, Liu never gave a direct answer as to whether he
lied during a visa interview. Contrary to Liu’s argument, a
demeanor finding does not have to be linked to inconsistent
testimony. See id.
The agency also reasonably relied on substantial
inconsistencies between Liu’s application and testimony
concerning his alleged detention and beating by Chinese
family planning authorities. His application states that he
was locked in a room at work, beaten and wounded on his upper
lip, and released back to work after he revealed his wife’s
location. In contrast, he testified that he was detained for
twenty days and beaten with electric batons on his head, leg,
and lip to the point that he passed out. While “asylum
4
applicants are not required to list every incident of
persecution” in their application, Pavlova v. INS, 441 F.3d
82, 90 (2d Cir. 2006), the length of the detention and
severity of a beating with an electric baton are facts that
Liu “would reasonably have been expected to disclose,” Hong
Fei
Gao, 891 F.3d at 78; see also Xiu Xia
Lin, 534 F.3d at
167 (holding that petitioner’s failure to include the length
of her detention in her asylum application was, inter alia,
a proper basis for the IJ’s adverse credibility
determination). And the agency was not required to credit
Liu’s supplemental affidavit explaining this inconsistency
because he never mentioned that explanation during the
hearing. See
Majidi, 430 F.3d at 80 (“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 omitted)).
Liu’s testimony regarding the date he was fired from his
job, although tangential, bolsters the adverse credibility
determination. See Xiu Xia Lin, 534 F.3d at 167 (“[A]n IJ
may rely on any inconsistency or omission in making an adverse
credibility determination as long as the ‘totality of the
circumstances’ establishes that an asylum applicant is not
5
credible.” (quoting 8 U.S.C. S 1158(b)(1)(B)(iii))). And
having questioned Liu’s credibility, the agency reasonably
found that Liu failed to rehabilitate his testimony with
corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d
268, 273 (2d Cir. 2007). Liu submitted statements from his
wife and her colleague in China recounting her forced
abortion, and a letter from his girlfriend stating that the
family planning authorities were still looking for him. The
agency reasonably afforded these documents diminished weight
because the authors were interested witnesses and unavailable
for cross-examination. See Y.C. v. Holder,
741 F.3d 324, 334
(2d Cir. 2013) (deferring to agency’s decision to afford
little weight to relative’s letter from China because it was
unsworn and from an interested witness); Xiao Ji Chen v. U.S.
Dep’t of Justice,
471 F.3d 315, 342 (2d Cir. 2006) (noting
that determinations concerning the weight of evidence lie
largely within the discretion of the agency). Given the
demeanor and inconsistency findings and the lack of reliable
corroboration, the agency’s adverse credibility determination
is supported by substantial evidence and is dispositive of
asylum, withholding of removal, and CAT relief because all
three forms of relief relied on the same factual predicate.
See 8 U.S.C. § 1158(b)(1)(B)(iii); Paul v. Gonzales,
444 F.3d
6
148, 155–57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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