11-5060
Liang v. Holder
BIA
Grant, IJ
Hom, IJ
A079 399 984
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
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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 A SUMMARY ORDER
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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 12th day of September, two thousand thirteen.
PRESENT:
JOSÉ A. CABRANES,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_______________________________________
ZHU LA LIANG,
Petitioner,
v. 11-5060
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Lewis G. Hu, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Greg D. Mack, Senior
Litigation Counsel, Genevieve Holm,
Trial Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
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.
Zhu La Liang, a native and citizen of the People’s
Republic of China, seeks review of a November 8, 2011, order
of the BIA, affirming the November 17, 2005, decision of
Immigration Judge (“IJ”) M. Christopher Grant, which denied
her application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Zhu La
Liang, No. A079 399 984 (B.I.A. Nov. 08, 2011), aff’g No. A079
399 984 (Immig. Ct. Arlington, Nov. 17, 2005). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case.1
I. Adverse Credibility Determination
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s decisions. See Yun-Zui Guan v.
Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The applicable
standards of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
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Liang did not challenge the IJ’s denial of CAT
relief before the BIA and does not meaningfully challenge
it in this Court. Thus, the claim is forfeited.
2
Cir. 2009). In pre-REAL ID Act cases, such as this one,
inconsistencies and other discrepancies may form the basis of
an adverse credibility determination but must “bear a
legitimate nexus” to the applicant’s claim of persecution and
be “substantial” when measured against the record as a whole.
Secaida-Rosales v. INS, 331 F.3d 297, 307-08 (2d Cir. 2003).
The agency, however, may rely on the cumulative effect of even
minor inconsistencies. See Tu Lin v. Gonzales, 446 F.3d 395,
402 (2d Cir. 2006).
We conclude that substantial evidence supports the
agency’s adverse credibility determination. In finding Liang
not credible, the IJ reasonably relied in part on Liang’s
demeanor, noting that she appeared very nervous when asked to
explain inconsistencies in her testimony. See Majidi v.
Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005). We defer to
this finding. Id.
Further, the agency reasonably relied on inconsistencies
and omissions in Liang’s various statements in concluding she
was not credible. See Xiu Xia Lin v. Mukasey, 534 F.3d 162,
166-67 n.3 (2d Cir. 2008) (holding that for purposes of
analyzing a credibility determination, “[a]n inconsistency and
an omission are functionally equivalent”); see also Secaida-
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Rosales, 331 F.3d at 308. Contrary to Liang’s argument, the
fact of her forced abortion was material, and bore a
“legitimate nexus,” to her claim that she had suffered past
persecution, and, therefore, the omission of that fact during
her credible fear interview formed a legitimate basis for the
IJ’s adverse credibility determination. See Secaida-Rosales,
331 F.3d at 307-08; see also Xiu Xia Lin, 534 F.3d at 166-67
n.3. The IJ also reasonably relied on discrepancies between:
(1) Liang’s original and amended asylum applications with
respect to the year in which the abortion occurred; (2)
Liang’s and her husband’s testimony as to whether they had
cohabited in China; and (3) Liang’s testimony and abortion
certificate with regard to the date of the abortion procedure.
Liang failed to provide compelling explanations for these
discrepancies. See Majidi, 430 F.3d at 80-81.
Furthermore, the IJ reasonably found implausible Liang’s
assertion that she chose to delay marrying after discovering
that she was pregnant despite her awareness of the significant
risks associated with conceiving a child out of wedlock. See
Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2009)
(holding that where the IJ’s findings are “tethered to record
evidence, and there is nothing else in the record from which
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a firm conviction of error could properly be derived,” we will
not disturb the inherent implausibility finding). Finally,
because Liang does not challenge the IJ’s finding that she
failed adequately to corroborate her claim, it stands as valid
basis for the agency’s adverse credibility determination. See
Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).
Thus, given the absence of corroborating evidence, as well
as the aforementioned omissions and discrepancies in Liang’s
testimony, we identify no error in the agency’s denial of
asylum and withholding of removal on credibility grounds. See
Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
II. Due Process
Despite the IJ’s failure to conduct a de novo hearing on
remand as ordered by the BIA, Liang has not demonstrated that
she was deprived of due process during her proceedings. See Li
Hua Lin v. U.S. Dept. of Justice, 453 F.3d 99, 104-05 (2d Cir.
2006). Indeed, nothing in the record suggests that Liang was
prohibited from fully developing her testimony, that any of
her evidence had been ignored, or that the IJ made a
determination on issues about which she had no notice or
opportunity to be heard. See id. Furthermore, Liang has not
identified anything to suggest that the manner in which the IJ
conducted her proceedings undermined their fairness. See id.
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Finally, contrary to Liang’s contention, the IJ who certified
the record and returned it to the BIA for adjudication of
Liang’s appeal expressly declined to address the merits of the
prior IJ’s decision, noting that such review was solely within
the purview of the BIA.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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