12-2460 Liu v. Holder BIA Morace, IJ A087 974 621 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 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 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 18th day of September, two thousand thirteen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 RAYMOND J. LOHIER, JR., 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 YONG DENG LIU, 14 Petitioner, 15 16 v. 12-2460 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Michael Brown, New York, New York. 24 25 FOR RESPONDENT: Stuart F. Delery, Principal Deputy 26 Assistant Attorney General; Greg 27 Mack, Senior Litigation Counsel; 28 Micheline Hershey, Attorney, Office 29 of Immigration Litigation, United 30 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 4 is DENIED. 5 Yong Deng Liu, a native and citizen of China, seeks 6 review of a May 29, 2012, decision of the BIA affirming the 7 April 6, 2011, decision of Immigration Judge (“IJ”) Philip 8 L. Morace, which denied his application for asylum, 9 withholding of removal, and relief under the Convention 10 Against Torture (“CAT”). In re Yong Deng Liu, No. A087 974 11 621 (B.I.A. May 29, 2012), aff’g No. A087 974 621 (Immig. 12 Ct. N.Y. City Apr. 6, 2011). We assume the parties’ 13 familiarity with the underlying facts and procedural history 14 in this case. 15 Under the circumstances of this case, we have reviewed 16 both the BIA’s and IJ’s opinions. Yun-Zui Guan v. Gonzales, 17 432 F.3d 391, 394 (2d Cir. 2005). The applicable standards 18 of review are well established. See 8 U.S.C. 19 §1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d 20 Cir. 2009). 21 For applications, like Liu’s, governed by the REAL ID 22 Act, the agency may, “[c]onsidering the totality of the 23 circumstances,” base a credibility finding on an asylum 2 1 applicant’s “demeanor, candor, or responsiveness,” the 2 plausibility of his account, and inconsistencies in his 3 statements, without regard to whether they go “to the heart 4 of the applicant’s claim.” See 8 U.S.C. 5 §§ 1158(b)(1)(B)(iii), 1231(b)(3)©; Xiu Xia Lin v. Mukasey, 6 534 F.3d 162, 167 (2d Cir. 2008). We “defer to an IJ’s 7 credibility determination unless, from the totality of the 8 circumstances, it is plain that no reasonable fact-finder 9 could make such an adverse credibility ruling.” Xiu Xia 10 Lin, 534 F.3d at 167. 11 Here, the agency reasonably found Liu not credible 12 based on internal inconsistencies in his testimony and 13 inconsistencies between his testimony and his documents. 14 See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 15 167. Liu testified inconsistently regarding the dates of 16 his arrests and whether he was with his wife when she was 17 taken for sterilization, stating, contrary to his asylum 18 application, that he was not with his wife in 2000 when the 19 cadres came to take her for sterilization because he was out 20 fishing, but on cross-examination changing his testimony to 21 say that he was with her. Moreover, Liu testified that he 22 was arrested twice, in 1995 and 2008, changed his testimony 3 1 to say he was arrested in 2000 and 2008, and then changed it 2 again to say he could not recall the date of his first 3 arrest but the second arrest was definitely in 2008. 4 Furthermore, this inconsistent testimony contradicts Liu’s 5 asylum application, which mentions no incident in 1995 and 6 places Liu with his wife in 2000 when she was taken for 7 forced sterilization. As these discrepancies go to the 8 heart of Liu’s claim that he suffered past persecution on 9 account of his resistance to the family planning policy in 10 China, the agency’s determination that Liu was not credible 11 is supported by substantial evidence. See Xiu Xia Lin, 534 12 F.3d at 165-66. 13 The adverse credibility determination is further 14 supported by the IJ’s demeanor finding, to which we defer. 15 See Karaj v. Gonzales, 462 F.3d 113, 116 (2d Cir. 2006) 16 (“the IJ’s opportunity to judge demeanor causes us to grant 17 particular deference to credibility findings based on 18 demeanor.” (internal quotations and citation omitted)). The 19 agency considered and reasonably rejected Liu’s explanations 20 for his inconsistencies, as his lack of literacy and 21 education do not explain his inconsistent statement as to 22 whether he was arrested in 1995 or in 2000 or where he was 4 1 when his wife was taken for sterilization. See Majidi v. 2 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (A petitioner “must 3 do more than offer a plausible explanation for his 4 inconsistent statements to secure relief; he must 5 demonstrate that a reasonable fact-finder would be compelled 6 to credit his testimony.” (internal quotations and citation 7 omitted)). 8 Given Liu’s inconsistencies, demeanor, and non- 9 responsive explanations, the totality of the circumstances 10 supports the agency’s adverse credibility determination. 11 See Xiu Xia Lin, 534 F.3d at 167. Because the only evidence 12 of a threat to Liu’s life or freedom depended upon his 13 credibility, the adverse credibility determination in this 14 case necessarily precludes any relief. See Paul v. 15 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). 16 For the foregoing reasons, the petition for review is 17 DENIED. The pending motion for a stay of removal in this 18 petition is DISMISSED as moot. 19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 5