14-2323
Liu v. Lynch
BIA
Wright, IJ
A200 838 135
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 2nd day of September, two thousand fifteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 JIAN MING LIU,
14 Petitioner,
15
16 v. 14-2323
17 NAC
18
19 LORETTA E. LYNCH,
20 UNITED STATES ATTORNEY GENERAL*,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Lee Ratner, Law Offices of Michael
25 Brown, New York, New York.
26 *Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
27 Loretta E. Lynch is automatically substituted for former Attorney General
28 Eric H. Holder, Jr.
29
30
1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
2 Attorney General; Jesse M. Bless,
3 Senior Litigation Counsel; Alexander
4 J. Lutz, Trial Attorney, Office of
5 Immigration Litigation, United States
6 Department of Justice, 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 is
11 DENIED.
12 Jian Ming Liu, a native and citizen of China, seeks review
13 of a June 6, 2014, decision of the BIA, affirming the April 24,
14 2012, decision of an Immigration Judge (“IJ”), which denied
15 his application for asylum, withholding of removal, and relief
16 pursuant to the Convention Against Torture (“CAT”). In re
17 Jian Ming Liu, No. A200 838 135(B.I.A. June 6, 2014), aff’g No.
18 A200 838 135 (Immig. Ct. N.Y. City Apr. 24, 2012). We assume
19 the parties’ familiarity with the underlying facts and
20 procedural history in this case.
21 We have reviewed both the decisions of the IJ and the BIA
22 “for the sake of completeness.” Wangchuck v. Dep’t of Homeland
23 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
24 standards of review are well established. 8 U.S.C.
2
1 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
2 Cir. 2009).
3 For asylum applications like Liu’s, governed by the REAL
4 ID Act of 2005, the agency may, “[c]onsidering the totality of
5 the circumstances,” base a credibility determination on
6 inconsistencies in an asylum applicant’s statements and other
7 record evidence, “without regard to whether” they go “to the
8 heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
9 “We defer . . . to an IJ’s credibility determination unless,
10 from the totality of the circumstances, it is plain that no
11 reasonable fact-finder could make such an adverse credibility
12 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
13 2008) (per curiam). Substantial evidence supports the
14 agency’s adverse credibility determination.
15 The agency reasonably based its adverse credibility
16 determination on significant inconsistencies between Liu’s
17 airport interview, credible fear interview, and statements he
18 made in his asylum application and at his hearing. A
19 comparison shows substantial discrepancies. Liu stated at his
20 airport interview that he came to the United States to join his
21 fiancée, and feared returning to China because his parents were
22 poor and the Chinese government would put him in jail for having
3
1 traveled to the United States. At his credible fear interview,
2 he explicitly stated that he had never been threatened or harmed
3 in China, and revealed (for the first time) that his fiancée
4 had been forced to have an abortion. He also claimed to have
5 found Christianity in prison, and that he feared returning to
6 China as a Christian. However, he conceded in his asylum
7 application that he had fabricated the story about his fiancée,
8 her forced abortion, and his discovery of Christianity in
9 prison. He actually came to the United States because he had
10 been active in an underground Christian church in China, and
11 had been detained and beaten by the police on that basis.
12 Liu explained that a “snakehead” who smuggled him into the
13 United States told him to apply for asylum based on a family
14 planning policy violation because Liu did not have proof of his
15 religious persecution in China. However, as the IJ observed,
16 it did not make sense that the snakehead would instead recommend
17 that Liu base his claim on a nonexistent fiancée’s forced
18 abortion, for which he also did not have any proof. Moreover,
19 although Liu allegedly feared defying the smuggler’s
20 instructions, he did not in fact follow those instructions.
21 The agency was therefore not compelled to accept this
22 explanation. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d
4
1 Cir. 2005) (holding that the agency need not credit an
2 applicant’s explanations for inconsistent testimony unless
3 those explanations would compel a reasonable fact-finder to do
4 so).
5 The agency also found that Liu failed to adequately
6 corroborate his claim. An applicant’s failure to corroborate
7 testimony may bear on credibility, either because the absence
8 of particular corroborating evidence is viewed as suspicious,
9 or because the absence of corroboration in general makes an
10 applicant unable to rehabilitate testimony that has already
11 been called into question. See Biao Yang v. Gonzales, 496 F.3d
12 268, 273 (2d Cir. 2007). Liu does not challenge that finding.
13 See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir.
14 2005).
15 Given the inconsistencies and lack of corroboration, the
16 totality of the circumstances supports the agency’s adverse
17 credibility determination. See Xiu Xia Lin, 534 F.3d at 167.
18 That determination is dispositive of asylum, withholding of
19 removal, and CAT relief as those claims are based on the same
20 factual predicate. Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
21 Cir. 2006).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
6