NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3859
___________
DABIN LIU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
Immigration Judge: Honorable Annie S. Garcy
(Agency No. A094-048-585)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 17, 2010
Before: SCIRICA, SMITH and WEIS, Circuit Judges
(Opinion filed: June 17, 2010)
___________
OPINION
___________
PER CURIAM.
Dabin Liu petitions for review of a final removal order entered by the Board
of Immigration Appeals (“BIA”). We will deny the petition.
1
Liu, age twenty eight, is a native and citizen of China. In 2002, he
graduated from Sichuan University, and from 2003 to 2005 he studied library
management in Paris, France. In June 2005, rather than return to China, Liu entered the
United States on a tourist visa. He overstayed the visa and filed an I-589 application for
asylum in June 2006. In proceedings before an Immigration Judge (“IJ”), Liu conceded
removability for overstaying, and he pursued asylum, withholding of removal, and
Convention Against Torture (“CAT”) relief. Liu claims that, shortly after entering the
United States, he joined the China Democracy Party (“CDP”), which seeks to promote
democracy in China and opposes the ruling Communist Party. Liu testified before the IJ
that he participated in ten or more protests outside the office of China’s Consul General in
New York, wrote five articles for the CDP’s website, passed out flyers in the street, and
attended meetings. He claims to fear future persecution in China due to his CDP
activities in the United States.
The IJ rejected the credibility of Liu’s testimony. Among other things, the
IJ observed that, in the I-589 application, Liu had stated that he recruited a woman in
China, Ting Zhao, to join the CDP, and that the Chinese government had learned of Liu’s
CDP membership by arresting Zhao and pressuring her to identify Liu. The IJ noted that
Liu made no mention in his direct testimony at the merits hearing of having recruited
Zhao, of the Chinese authorities having learned of his CDP membership through Zhao, or
of officials in China having visited his parents’ home after learning of his CDP activities.
2
Because Liu neglected to mention this “centerpiece” of his asylum claim, and in light of
additional inconsistencies that the IJ noted, relief was denied.
The BIA affirmed the adverse credibility determination, citing several
inconsistencies in Liu’s testimony, and thus affirmed the denial of asylum and
withholding of removal. The BIA also rejected Liu’s challenge to the exclusion of certain
documents and testimony that Liu had sought to introduce at his April 2008 hearing.1 The
BIA noted that the IJ had set an October 31, 2007, deadline for the submission of this
evidence, and that Liu had failed to seek an extension of time or to show good cause for
his late filing.2 The BIA also affirmed the denial of CAT relief. Liu timely filed a
petition for review in this Court.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). We review agency
factual findings, including an adverse credibility determination, under the deferential
substantial evidence standard. Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005). An
adverse credibility finding must be upheld unless “any reasonable adjudicator would be
compelled to conclude to the contrary.” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.
2004) (quotation marks omitted).
1
The excluded evidence included Liu’s original passport, various CDP membership
materials, internet articles with their web addresses, and testimony from a witness to
verify Liu’s CDP membership and activities.
2
The IJ’s Docket Control Order provided that “[a]ny document filed after [October
31, 2007] must be accompanied by a motion to enlarge deadline and written
explanation of why the document was not filed in time.” A.R. at 545 (emphasis in
original).
3
The REAL ID Act, which the BIA properly applied here, provides that the
IJ, after “[c]onsidering the totality of the circumstances, and all relevant factors,” may
base an adverse credibility determination
on the demeanor, candor, or responsiveness of the applicant
or witness, the inherent plausibility of the applicant’s or
witness’s account, the consistency between the applicant’s or
witness’s written and oral statements (whenever made and
whether or not under oath, and considering the circumstances
under which the statements were made), the internal
consistency of each such statement, the consistency of such
statements with other evidence of record (including the
reports of the Department of State on country conditions), and
any inaccuracies or falsehoods in such statements, without
regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim, or any other
relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii).
We find substantial evidence to support the adverse credibility
determination here. The central failing identified by the BIA was the discrepancy
between Liu’s direct testimony and his I-589 statement. As the BIA observed, “the
inconsistencies included [Liu]’s failure to indicate on direct examination that his
membership in the opposition party had been disclosed to government authorities by a
friend he recruited into the party.” A.R. at 4. In his I-589 statement, Liu had stated that
the “China communist government had discovered the fact that I joined CDP from Ting
Zhao ... another female member recruited by me.” Id. at 456. While Liu testified on
direct examination that Chinese officials became aware of his CDP activities after
4
interrogating his parents and, on cross-examination, he acknowledged that he had
convinced friends in China to join the CDP, “when confronted by the [IJ] that his claim of
his parents disclosing his party membership was inconsistent with his asylum application
that stated his friend had made this disclosure, [Liu] refused to acknowledge the
inconsistent testimony.” Id. at 4. This inconsistency, as the BIA noted, goes to the heart
of Liu’s asylum application because it was the reason cited in the I-589 application for
Liu’s fear of returning to China.
The BIA noted further inconsistencies and omissions, including Liu’s
“claim that he freely talked to individuals in China on the telephone and his party’s
internet site was readily available in China, but could not obtain corroborative evidence of
his friend’s or parents’ interrogation as the Chinese authorities closely monitored the mail
and internet sites.” Id. at 4-5. In addition, Liu’s “application claimed that criminal
charges had been filed against him in China, but he denied this claim at the hearing in
April 2008 asserting that such charges might be filed against him if he is returned to
China.” Id. at 5. Finally, the BIA noted that the IJ had relied on Liu’s “demeanor during
the April 2008 hearing where he repeatedly was nonresponsive to questioning.” Id.
We cannot conclude on this record that any reasonable adjudicator would be
compelled to find Liu credible. Liu argues that the IJ mischaracterized his testimony, and
that the adverse credibility finding “was based on speculation and conjecture and the IJ’s
predisposition to find against [Liu] because of his failure to comply with her scheduling
5
order.” Petitioner’s Br. at 33. Liu bases these arguments, however, upon his own
readings of the record and, particularly, upon his own view as to how the various answers
that he gave to questions posed at the merits hearing should be interpreted. We must be
mindful that, “[w]here there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 574 (1985). Because the record fairly supports the BIA’s view of
Liu’s testimony and its perceived shortcomings, Liu’s proposed alternative readings of
the record are insufficient to compel a contrary credibility finding.3
Liu also challenges the decision to exclude his late-filed evidence and the
witness testimony that he wished to present to corroborate his CDP membership and
activities. See note 1, supra. An IJ is authorized to “set and extend time limits for the
filing of applications and related documents,” and “[i]f an application or document is not
filed within the time set by the [IJ], the opportunity to file that application or document
shall be deemed waived.” 8 C.F.R. § 1003.31(c). Courts review the exclusion of
evidence under this provision for abuse of discretion. See Dedji v. Mukasey, 525 F.3d
187, 191 (2d Cir. 2008). We discern no abuse of discretion.
As the BIA explained at length, the IJ noted at a hearing on August 2, 2007,
3
The BIA’s adverse credibility determination supports its decision to affirm the denial
of asylum and withholding of removal. Because Liu does not argue his CAT claim on
this appeal, we deem that issue waived and do not address it. See Lie v. Ashcroft, 396
F.3d 530, 532 n.1 (3d Cir. 2005).
6
Liu’s desire to present his evidence, and Liu’s counsel requested a “couple of months” to
obtain the evidence. The IJ set a deadline of October 31, 2007, which Liu failed to meet.
The BIA found that “[t]he 3-month deadline imposed by the [IJ] was reasonable to obtain
evidence that was in [Liu]’s possession or could be easily obtained by [Liu].” A.R. at 3.
Further, the BIA noted Liu’s failure to notify the IJ of any difficulty in obtaining the
evidence and his failure to move for late filing of the materials by showing good cause.
Liu contends that the record fails to support the BIA’s findings, and he
argues that the government suffered no prejudice from his late filing. Liu concedes, as he
must, that he failed to comply with the IJ’s deadline for filing, and that he did not move to
enlarge the deadline, but he argues that “the IJ’s exclusion of evidence must still be
reasonable under the circumstances[.]” 4 Petitioner’s Br. at 24. We agree with the
government that, even if Liu could show that his evidence was improperly excluded from
consideration at the merits hearing, he has not shown how the admission of that evidence
might have affected the credibility determination. As discussed, the adverse credibility
finding was based on numerous inconsistencies and shortcomings in Liu’s testimony,
particularly the inconsistency between his direct testimony and the I-589 application on
the basis for his claimed fear of returning to China. Consequently, given the absence of a
showing of prejudice to Liu, we cannot conclude that the BIA abused its discretion in
4
To the extent that Liu couches his argument in terms of a due process violation, he
did not exhaust his administrative remedies before the BIA. Consequently, this Court
lacks jurisdiction to consider a due process challenge. See 8 U.S.C. § 1252(d)(1).
7
affirming the IJ’s decision to exclude Liu’s late-filed evidence.
For the foregoing reasons, we will deny the petition for review.
8