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
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