Xiaochong Liu v. Holder

13-2134 Liu v. Holder BIA Hom, IJ A200 929 122 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 June, two thousand fourteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 JOSÉ A. CABRANES, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 XIAOCHONG LIU, 14 Petitioner, 15 16 v. 13-2134 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Xiaochong Liu, Pro Se, Las Vegas, 24 Nevada. 25 26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 27 General; Ernesto H. Molina, Jr., 28 Assistant Director; Andrew N. 29 O’Malley, Trial Attorney, Office of 30 Immigration Litigation, United 1 States Department of Justice, 2 Washington, D.C. 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Xiaochong Liu, a native and citizen of the People’s 9 Republic of China, seeks review of an April 30, 2013, 10 decision of the BIA affirming an Immigration Judge’s (“IJ”) 11 March 1, 2011, decision, denying his application for asylum, 12 withholding of removal, and relief under the Convention 13 Against Torture (“CAT”). In re Xiaochong Liu, No. A200 929 14 122 (B.I.A. Apr. 30, 2013), aff’g No. A200 929 122 (Immig. 15 Ct. N.Y. City Mar. 1, 2011). We assume the parties’ 16 familiarity with the underlying facts and procedural history 17 in this case. 18 Under the circumstances of this case, we have reviewed 19 the decision of the IJ as supplemented by the BIA. See Yan 20 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 21 applicable standards of review are well established. See 8 22 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 23 F.3d 510, 513 (2d Cir. 2009). Because Liu failed to exhaust 24 his challenge to the IJ’s denial of CAT relief, we address 2 1 only asylum and withholding of removal. See Karaj v. 2 Gonzales, 462 F.3d 113, 119 (2d Cir. 2006) (noting that 3 petitioners must first challenge the denial of categories of 4 relief before the BIA as a matter of statutory exhaustion). 5 For applications such as Liu’s, governed by the REAL ID 6 Act of 2005, the agency may, “considering the totality of 7 the circumstances,” base a credibility finding on the 8 applicant’s “demeanor, candor, or responsiveness,” the 9 plausibility of his account, and inconsistencies in his 10 statements, without regard to whether they go “to the heart 11 of the applicant’s claim.” See 8 U.S.C. 12 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 13 167 (2d Cir. 2008) (per curiam). We “defer to an IJ’s 14 credibility determination unless, from the totality of the 15 circumstances, it is plain that no reasonable fact-finder 16 could make” such a ruling. Xiu Xia Lin, 534 F.3d at 167. 17 Here, the IJ reasonably based the adverse credibility 18 determination on Liu’s inconsistent testimony and 19 inconsistencies between his testimony and his documentary 20 evidence. As the agency found, Liu gave confusing and 21 inconsistent testimony regarding why he petitioned for a new 22 Chinese passport after arriving in the United States. 3 1 Initially, Liu stated that he needed to replace his expiring 2 passport, but later testified that needed a new passport as 3 evidence of his admission to the United States and his 4 nationality. The IJ reasonably rejected Liu’s explanation 5 that the new passport was necessary to apply for asylum, 6 given that Liu’s original passport, which he submitted, 7 provided sufficient evidence of his entry and nationality. 8 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). 9 In addition, Liu’s testimony that he reported his 10 original passport lost (to obtain a replacement) 11 contradicted his original passport, which was stamped 12 “cancel” and had its corner cut. This suggested that the 13 Chinese government received and invalidated it before 14 issuing a new passport. Because these inconsistencies 15 related to the reasonableness of Liu’s fear of persecution 16 by the Chinese government, the totality of the circumstances 17 support the agency’s adverse credibility determination. See 18 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 19 534 F.3d at 167. 20 Although Liu submitted corroborating letters from his 21 relatives and pastors, a medical document and fine receipt 22 from the date of his release from custody, and a notice from 4 1 the Chinese government, the IJ reasonably found that 2 evidence insufficient to establish Liu’s eligibility for 3 relief absent credible testimony, because the authors were 4 interested parties and unavailable for cross-examination and 5 the medical document and notice were unsigned and unsworn. 6 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 7 (2d Cir. 2006) (the weight accorded to documentary evidence 8 lies largely within agency’s discretion); see also Matter of 9 H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) 10 (giving diminished evidentiary weight to letters from 11 “relatives and friends,” because they were from interested 12 witnesses not subject to cross-examination), rev’d on other 13 grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 14 2012). The only evidence of a threat to Liu’s life or 15 freedom depended upon his credibility, so the adverse 16 credibility determination in this case necessarily precludes 17 success on his claims for asylum and withholding of removal. 18 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). 19 For the foregoing reasons, the petition for review is 20 DENIED. As we have completed our review, any stay of 21 removal that the Court previously granted in this petition 22 is VACATED, and any pending motion for a stay of removal in 23 this petition is DISMISSED as moot. Any pending request for 5 1 oral argument in this petition is DENIED in accordance with 2 Federal Rule of Appellate Procedure 34(a)(2), and Second 3 Circuit Local Rule 34.1(b). 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6 7 6