13-343
Liu v. Holder
BIA
Hom, IJ
A089 097 535
A089 097 536
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 28th day of October, two thousand fourteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 PIERRE N. LEVAL,
10 Circuit Judges.
11 _____________________________________
12
13 YONGFU LIU, YINGMEI YUAN,
14 Petitioners,
15
16 v. 13-343
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONERS: Khaghendra Gharti-Chhetry, New York,
24 New York.
25
07162014-B1-3
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Cindy S. Ferrier, Assistant
3 Director; Sunah Lee, Trial Attorney,
4 Office of Immigration Litigation,
5 United States Department of Justice,
6 Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioners Yongfu Liu and Yingmei Yuan, natives and
13 citizens of the People’s Republic of China, seek review of a
14 January 14, 2013, decision of the BIA, affirming the March
15 10, 2011, decision of Immigration Judge (“IJ”) Sandy K. Hom,
16 denying their application for asylum, withholding of
17 removal, and relief under the Convention Against Torture
18 (“CAT”). In re Yongfu Liu, Yingmei Yuan, Nos. A089 097 535,
19 A089 097 536 (B.I.A. Jan. 14, 2013), aff’g Nos. A089 097
20 535, A089 097 536 (Immig. Ct. N.Y. City Mar. 10, 2011). We
21 assume the parties’ familiarity with the underlying facts
22 and procedural history of this case.
23 Under the circumstances of this case, we have reviewed
24 both the IJ’s and the BIA’s opinions “for the sake of
25 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
26 2008) (quotation marks and citations omitted). The
07162014-B1-3 2
1 applicable standards of review are well established. See
2 8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey,
3 546 F.3d 138, 157-58 (2d Cir. 2008); Xiu Xia Lin v. Mukasey,
4 534 F.3d 162, 165-66 (2d Cir. 2008).
5 I. Past Persecution
6 The agency may, considering the totality of the
7 circumstances, base a credibility finding on inconsistencies
8 in an applicant’s statements and other record evidence
9 without regard to whether they go “to the heart of the
10 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
11 Lin, 534 F.3d at 163-64. Substantial evidence supports the
12 agency’s determination that petitioners were not credible as
13 to their claim that family planning officials had fined them
14 and beaten Liu on account of Yuan’s pregnancy in violation
15 of China’s coercive population control policy.
16 Petitioners’ statements in their original asylum
17 applications that Yuan was forced to undergo abortion and
18 sterilization procedures were inconsistent with their
19 testimony that she had not undergone such procedures. See
20 Xiu Xia Lin, 534 F.3d at 167. Furthermore, they omitted
21 from their original asylum applications their claim that
22 family planning officials beat Liu. See id. at 166 n.3 (“An
07162014-B1-3 3
1 inconsistency and an omission are . . . functionally
2 equivalent.”). Petitioners also provided inconsistent
3 statements and evidence regarding when they were fined for
4 violating the population control policy. See Xiu Xia Lin,
5 534 F.3d at 167. Neither petitioners, nor their counsel,
6 provided a compelling explanation for these discrepancies.
7 See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).
8 Having questioned petitioners’ credibility, the agency
9 reasonably relied further on their failure to provide
10 certain evidence corroborating their claim. See Biao Yang
11 v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Given the
12 inconsistency and corroboration findings, the agency’s
13 adverse credibility determination is supported by
14 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii);
15 see also Xiu Xia Lin, 534 F.3d at 167. Because the
16 credibility determination is dispositive, we need not reach
17 the agency’s alternative finding that, even if credible,
18 petitioners failed to show that the harm they suffered
19 constituted persecution.
20 II. Well-Founded Fear of Persecution
21 For largely the same reasons as this Court set forth in
22 Jian Hui Shao, 546 F.3d 138, we find no error in the
07162014-B1-3 4
1 agency’s determination that petitioners failed to
2 demonstrate a well-founded fear of future persecution for
3 their alleged violation of China’s population control
4 program. See id. at 158-72.
5 For the foregoing reasons, the petition for review is
6 DENIED. Any pending request for oral argument in this
7 petition is DENIED in accordance with Federal Rule of
8 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
9 34.1(b).
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
13
14
07162014-B1-3 5