Filed: Feb. 06, 2012
Latest Update: Feb. 22, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 11-2911 _ YONG AI LIU, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A200-035-983) Immigration Judge: Honorable Miriam K. Mills _ Submitted Pursuant to Third Circuit LAR 34.1(a) February 2, 2012 Before: AMBRO, ALDISERT and NYGAARD, Circuit Judges (Opinion filed: February 6, 2012) _ OPINION _ PER CURIAM Petitioner, Yong
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 11-2911 _ YONG AI LIU, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A200-035-983) Immigration Judge: Honorable Miriam K. Mills _ Submitted Pursuant to Third Circuit LAR 34.1(a) February 2, 2012 Before: AMBRO, ALDISERT and NYGAARD, Circuit Judges (Opinion filed: February 6, 2012) _ OPINION _ PER CURIAM Petitioner, Yong A..
More
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-2911
___________
YONG AI LIU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A200-035-983)
Immigration Judge: Honorable Miriam K. Mills
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 2, 2012
Before: AMBRO, ALDISERT and NYGAARD, Circuit Judges
(Opinion filed: February 6, 2012)
___________
OPINION
___________
PER CURIAM
Petitioner, Yong Ai Liu, seeks review of the Board of Immigration Appeals’
(―BIA‖ or ―Board‖) final order of removal. For the reasons that follow, we will deny the
petition for review.
I.
Liu is a native and citizen of China. He entered the United States in 2006 and was
charged with removability pursuant to section 212(a)(6)(A)(i) of the Immigration and
Nationality Act (INA) as an alien present without being admitted or paroled. See 8
U.S.C. § 1182(a)(6)(A)(i).
Liu conceded removability as charged, but sought asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). In his initial I-589
application, Liu contended that he had experienced past persecution, and feared future
persecution, due to his practice of Falun Gong. He claimed that, in June 2005, he had
been arrested by village cadres, interrogated about his practice, beaten, and ordered to
inform on the leaders of his group. Despite the fact that his application clearly stated that
he was arrested for actually practicing Falun Gong, Liu curiously contended in an
affidavit attached to the application that he did not practice Falun Gong, only spoke in
support of it. (AR 535-36.)
Liu subsequently filed an amended I-589 in which he claimed for the first time
that he had been arrested, detained, and tortured for more than a month in January 2005.
He also claimed for the first time that his mother had been detained and tortured in 1999
and 2005 for practicing Falun Gong.
At an August 2007 merits hearing before an Immigration Judge (IJ), Liu
confusingly testified that he began practicing Falun Gong in 2004 ―[b]ecause he started
having problem[s] with [his] stomach at [the] beginning of 2006.‖ (AR 435.) With
respect to the alleged acts of persecution, Liu explained that, when he was detained in
2
January 2005, the police had punched, kicked, and beaten him with a stick. He did not
sustain any injuries, however, because the police ―used a telephone book as a padding
when they beat [him] . . . [t]hey used a notebook as a padding and cover, too.‖ (AR 432.)
Liu stated that he was not given any documentation that could confirm his arrest and
detention. (AR 433.) Liu maintained that he had also been detained in June 2005, but
only for a few hours.
The IJ concluded that Liu’s testimony lacked credibility and denied his
applications for relief. The IJ explained that, ―[b]ased on a variety of [in]consistencies
which go to the very heart of respondent’s claim, the Court finds the respondent’s claim
for relief incredulous and likely frivolous with respect to the Falun Gong allegation.‖
(AR 410.) Upon review, the BIA remanded the matter to the IJ for further proceedings
because certain portions of the hearing transcript were missing or indiscernible.
Following remand, the IJ admitted the transcript from the prior hearing into the
record and conducted a new hearing. When asked about the discrepancies between his
two applications, Liu stated that his first I-589 was incomplete, that he forgot to include
certain pertinent information, and that he signed it pursuant to his attorney’s request
without reviewing it. When asked whether he had any witnesses who could corroborate
his claim that he continues to practice Falun Gong in the United States, Liu said that he
had asked witnesses to come but that they ―said it’s too much trouble‖ because they are
―from out of state.‖ (AR 127.)
3
Following this second hearing, the IJ again made an adverse credibility
determination and again denied relief. The BIA dismissed Liu’s appeal. The Board
found no clear error in the IJ’s credibility determination and agreed with the IJ that Liu
failed to present reasonably available corroborative evidence in support of his claim.
Accordingly, the BIA ordered that Liu be removed to China.
Liu now seeks review of the BIA’s order.
II.
We have jurisdiction over the petition for review pursuant to 8 U.S.C. §
1252(a)(1). When, as in this case, ―the BIA issues a separate opinion . . . we review the
BIA’s disposition and look to the IJ’s ruling only insofar as the BIA defers to it.‖ Huang
v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010). We exercise de novo review over the
BIA’s legal determinations. Wang v. Ashcroft,
368 F.3d 347, 349 (3d Cir. 2004). We
review agency factual determinations, including findings concerning credibility, under
the substantial evidence standard, treating them as ―conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.‖ 8 U.S.C. § 1252(b)(4)(B).
Liu’s primary arguments on appeal concern the BIA’s determination that he failed
to meet his burden of proof on his asylum claim. First, Liu claims that he provided
credible testimony in support of his claim. Because Liu filed his asylum application after
May 11, 2005, the provisions of the REAL ID Act governing credibility determinations
apply. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007). Prior to the
implementation of the REAL ID Act, minor omissions or inconsistencies that did not go
4
to the heart of an asylum applicant’s claim were insufficient to support adverse credibility
determinations. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Under the
REAL ID Act, however, a trier of fact may base a credibility determination on any
inconsistencies, without regard to whether they relate to the heart of the alien’s claim. 8
U.S.C. § 1158(b)(1)(B)(iii).
We have reviewed the record and conclude that substantial evidence supports the
agency’s adverse credibility determination. As the BIA explained, there were significant
inconsistencies in Liu’s story. For example, although Liu testified that he had been
arrested and detained for over a month in January 2005, he failed to mention this
incident—which is by far the most egregious—in his original asylum application.
Instead, he claimed only that he had been arrested in June of that year and detained for a
few hours. In addition, despite Liu’s contention in his applications and before the IJ that
police had arrested him on these occasions for practicing Falun Gong, he stated in an
affidavit to his initial I-589 that he did not practice it, but only spoke in support of it.
Furthermore, while he stated in his amended I-589 that his mother had been arrested,
detained, and tortured in 1999 for practicing Falun Gong, his original application fails to
make any mention of his mother’s alleged persecution. Because we agree with the BIA
that these inconsistencies undermined Liu’s credibility, we discern no error in the BIA’s
credibility finding.1
1
Liu argues that the BIA erred in failing to find that the IJ neglected to fully
consider the explanations he provided for the inconsistencies within and between his first
5
Liu also challenges the BIA’s determination that he failed to present reasonably
available corroborative evidence in support of his claim. Corroboration may reasonably
be expected for ―facts which are central to his or her claim and easily subject to
verification.‖ Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001) (internal quotation
marks omitted). We have consistently held that ―failure to produce corroborating
evidence may undermine an applicant’s case where (1) the IJ identifies facts for which it
is reasonable to expect the applicant to produce corroboration, (2) the applicant fails to
corroborate, and (3) the applicant fails to adequately explain that failure.‖
Chukwu, 484
F.3d at 191–92.
Substantial evidence supports the BIA’s conclusion that Liu failed to present
reasonably available corroborative evidence in support of his claim. As the BIA
explained, Liu failed to submit any evidence regarding the injuries he allegedly sustained
during his period of incarceration in January 2005, evidence regarding the June 2005
arrest, or any statements corroborating his continued practice of Falun Gong in the United
States. Although Liu argues on appeal that he gave adequate explanations as to why he
was unable to obtain such corroboration, we agree with the agency that his explanations
were unpersuasive.
I-589, his second I-589, and his testimony. Based on our review of the record, however,
it appears that the IJ sufficiently considered Liu’s explanations before reasonably
rejecting them. See Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)
(―Where there are two permissible views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.‖)
6
Next, Liu argues for the first time on appeal that the BIA erred in failing to find
that the IJ abused her discretion by admitting portions of the transcript of the earlier
proceeding into evidence. This claim is not properly before the Court because Liu failed
to present it to the BIA. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594–95 (3d Cir.
2003) (explaining that an alien must ―raise and exhaust his or her remedies as to each
claim or ground for relief if he or she is to preserve the right of judicial review of that
claim‖).
Finally, we reject Liu’s arguments that the BIA erred in concluding that he was
not entitled to withholding of removal or relief under the CAT. When, as in this case,
―asylum, withholding of removal, and CAT claims are based on the same discredited
testimony, the adverse credibility finding is fatal to all three claims.‖ Zine v. Mukasey,
517 F.3d 535, 541 (8th Cir. 2008) (citation and internal quotation marks omitted).
IV.
Accordingly, we will deny the petition for review.
7
