11-3003-ag
Liu v. Holder
BIA
Bain, IJ
A087 462 999
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 23rd day of September, two thousand thirteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 ROSEMARY S. POOLER,1
9
10 Circuit Judges.
11 _____________________________________
12
13 REN DUAN LIU,
14 Petitioner,
15
16 v. 11-3003-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Troy Nader Moslemi, Moslemi and
24 Associates, New York, N.Y.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
28 Assistant Director; Nancy N. Safavi,
1
Pursuant to Second Circuit Internal Operating
Procedure E(b), the matter is being decided by two
judges.
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Ren Duan Liu, a native and citizen of the People’s
11 Republic of China, seeks review of a June 29, 2011, order of
12 the BIA, affirming the July 8, 2009, decision of Immigration
13 Judge (“IJ”) Quynh Vu Bain, which denied his application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture. In re Ren Duan Liu, No. A087
16 462 999 (B.I.A. June 29, 2011), aff’g No. A087 462 999
17 (Immig. Ct. N.Y. City July 8, 2009). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 in this case.
20 Because Liu filed his application for relief after May
21 11, 2005, we apply the credibility standard imposed by the
22 REAL ID Act of 2005 (“REAL ID Act”), Pub. L. No. 109-13,
23 Div. B. 119 Stat 302 (2005). Under that standard,
24 considering the totality of the circumstances, an IJ may
25 base an adverse credibility determination on any
2
1 inconsistencies or inaccuracies in an asylum applicant’s
2 statements without regard to whether they go “to the heart
3 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
4 Where, as here, “the BIA agrees with an IJ’s adverse
5 credibility determination and adopts particular parts of the
6 IJ’s reasoning, we review the decisions of both the BIA and
7 the IJ.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 (2d Cir.
8 2008) (Per curiam). We review adverse credibility
9 determinations under the substantial evidence standard,
10 treating them as “conclusive unless any reasonable
11 adjudicator would be compelled to conclude to the contrary.”
12 8 U.S.C. § 1252(b)(4)(B); see Zheng v. Mukasey, 552 F.3d
13 277, 284 (2d Cir. 2009). Here, substantial evidence
14 supports the agency’s adverse credibility determination.
15 The agency’s adverse credibility determination was
16 based on specific inconsistencies, supported by the
17 administrative record, both within Liu’s testimony and
18 between Liu’s testimony and his asylum application. In
19 particular, the agency properly concluded that Liu gave
20 inconsistent testimony regarding whether he disclosed to
21 family planning officials where his wife was hiding at the
22 time he was detained and whether he had any contact with
3
1 family planning officials after his release from detention.
2 A reasonable fact finder would not be compelled to credit
3 Liu’s explanation for these inconsistencies. See Majidi v.
4 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
5 The record also supports the agency’s finding that
6 while Liu testified that his wife had an IUD inserted after
7 her second pregnancy had been aborted, Liu’s written asylum
8 application and his wife’s letter omitted this detail. See
9 Xiu Xia Lin, 534 F.3d at 166 n.3 “[An] omission in a
10 document submitted to corroborate the applicant’s testimony,
11 like a direct inconsistency . . . can serve as a proper
12 basis for an adverse credibility determination”).
13 Although Liu argues that the discrepancies were too
14 minor to support an adverse credibility determination, “an
15 IJ may rely on any inconsistency or omission in making an
16 adverse credibility determination as long as the ‘totality
17 of the circumstances’ establishes that an asylum applicant
18 is not credible.” Id. at 167.
19 The IJ’s decision is not without flaw, in that the IJ
20 erred in finding that Liu’s testimony was inconsistent with
21 his asylum application with respect to whether family
22 planning officials continued to target Liu following his
4
1 arrival in the United States, but remand would be futile
2 because “there is no realistic possibility that, absent the
3 errors, the IJ or BIA would have reached a different
4 conclusion.” See Cao He Lin v. U.S. Dep’t of Justice, 428
5 F.3d 391, 401 (2d Cir. 2005).
6 Ultimately, because a reasonable fact-finder would not
7 be compelled to conclude to the contrary, the agency’s
8 adverse credibility determination was supported by
9 substantial evidence. See Xiu Xia Lin, 534 F.3d at 165-66.
10 The adverse credibility determination is dispositive of
11 Liu’s claims for asylum and withholding of removal, as both
12 claims were based on the same factual predicate. See Paul
13 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any pending motion
16 for a stay of removal in this petition is DISMISSED as moot.
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
5