He Luan Liu v. U.S. Attorney General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10805
OCTOBER 27, 2011
Non-Argument Calendar
JOHN LEY
________________________ CLERK

Agency No. A089-093-864

HE LUAN LIU,

llllllllllllllllllllllllllllllllllllllll Petitioner,

versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
________________________

(October 27, 2011)

Before BARKETT, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
He Luan Liu, a native and citizen of China, petitions this Court for review

of the Board of Immigration Appeals’ (BIA’s) final order affirming the

Immigration Judge’s (IJ’s) denial of his application for asylum, withholding of

removal, and relief under the United Nations Convention Against Torture (CAT),

based on an adverse-credibility finding. Liu contends the BIA and IJ erred in

concluding he was not credible because substantial evidence supported his asylum

claims. After review,1 we affirm the BIA.2

An alien’s credible testimony, without further corroboration, can be

sufficient to meet the applicant’s burden in establishing eligibility for relief from

removal. 8 U.S.C. § 1158(b)(1)(B)(ii). Under the REAL ID Act of 2005:

Considering the totality of circumstances, and all relevant factors, a
trier of fact may base a 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

1
A determination that the petitioner’s testimony is not credible is a finding of fact. Xia
v. U.S. Att’y Gen., 608 F.3d 1233, 1239 (11th Cir. 2010). We review factual determinations
under the substantial evidence test, and “we must affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a whole.” Diallo v.
U.S. Att’y Gen., 596 F.3d 1329, 1332 (11th Cir. 2010) (quotations omitted). Under the
substantial-evidence test, we review the evidence from the record, drawing all inferences in favor
of the agency’s decision, and will reverse only if the record compels reversal. Id.
2
We typically only review BIA decisions, unless the BIA adopts the IJ’s reasoning.
Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1199 (11th Cir. 2009). Because the BIA issued its
own decision, we will review that order as the final agency decision. See id.

2
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). The court may deny asylum relief if the court finds

the applicant’s testimony is not credible, and the applicant produces insufficient

corroborating evidence to rebut any inconsistencies or omissions. Xia v. U.S. Att’y

Gen., 608 F.3d 1233, 1240 (11th Cir. 2010). Reliable testimony is marked by

“consistency on direct examination, consistency with the written application, and

the absence of embellishments.” Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1049

(11th Cir. 2009). The IJ must offer specific, cogent reasons for the adverse-

credibility finding, and it is the alien’s burden to show that the credibility finding

was not properly supported. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th

Cir. 2005).

Substantial evidence supports the BIA’s adverse-credibility determination

and the BIA offered specific, cogent reasons for its determination. The BIA based

its decision upon several inconsistencies between Liu’s application, testimony, and

submitted documents. Specifically, the BIA noted Liu testified he was in jail for a

little more than a month, but his asylum application stated he was in jail for a half

3
of a year. Liu testified his robbery arrest was in 1993, but his asylum application

stated that the arrest was in 1994. The BIA also noted the July 2006 medical

records Liu provided did not mention his wife’s IUD. In addition, the July 2006

medical records indicated his wife had a previous abortion, which contradicted

Liu’s testimony his wife had only had one abortion in May 2007. The other

medical reports Liu provided did not mention the presence of an IUD at the

relevant time. The BIA noted the November 2008 X-ray report listed Liu’s wife’s

age incorrectly. The BIA further noted Liu failed to support his assertion that

Chinese officials forcibly beat him and told him he had to report to the police

following his wife’s abortion by producing medical records, subpoenas, or

warrants. Further, the BIA reasonably found Liu’s limited education could not

excuse the discrepancies in his story.

The BIA also concluded Liu’s religious claims were inconsistent. The BIA

noted Liu first testified his wife went to church with him once and then testified

she attended church services three or four times. In addition, Liu’s testimony

regarding his wife’s limited religious activities was inconsistent with his wife’s

statement she often went to Christian parties, visited sick friends in the hospital,

and handed out religious flyers. The BIA concluded the credibility issue was

dispositive and declined to address the merits of Liu’s arguments.

4
Liu argues he never explicitly indicated that the IUD worsened his wife’s

gynecological issues or that his wife never converted to Christianity. The BIA,

however, did not base its adverse-credibility determination on whether it was

unclear if the IUD had worsened Liu’s wife’s gynecological issues, but rather, the

inconsistencies related to the date of the IUD insertion and forced abortion.

Further, the BIA did not base its adverse-credibility determination on

inconsistencies related to whether or not Liu’s wife was actually baptized and

converted to Christianity, but rather, the extent of her church involvement and the

internal inconsistency in Liu’s testimony regarding how many times she attended

church. Further, there is no indication, as Liu argues, that the BIA misread the

record or disregarded some of Liu’s evidence. See Kueviakoe, 567 F.3d at 1305-

06.

Liu asserts the BIA should have focused on the apparent consistencies, and

that his explanations for his inconsistencies were reasonable and should have been

accepted. However, the fact the record may support a contrary conclusion is not

enough to justify a reversal of the BIA’s determination. The BIA did not err in

basing its adverse-credibility determination on the inconsistencies between Liu’s

testimony and the other evidence, regardless of whether the inconsistencies went

to the heart of Liu’s claims. See 8 U.S.C. § 1158(b)(1)(B)(iii). Liu’s argument the

5
inconsistencies were negligible is unpersuasive because they did not need to be

central to his claim, and, moreover, the inconsistencies did involve many of the

core facts of his claim. Because of the numerous inconsistencies evident from the

record and explicitly detailed in the BIA’s decision, the record does not compel

reversal of the BIA’s credibility decision.

As Liu’s testimony was not credible, and he failed to produce sufficient

corroborating evidence to rebut inconsistencies, the adverse-credibility finding is

sufficient to deny his asylum claim. See Xia, 608 F.3d at 1240. Because Liu

failed to meet the standard for asylum, he cannot meet the higher standard for

withholding of removal or CAT releif. See Al Najjar v. Ashcroft, 257 F.3d 1262,

1292-93, 1303-04 (11th Cir. 2001) (stating an applicant who cannot meet the

“well-founded fear” standard for asylum cannot meet the higher standards for

withholding of removal or CAT relief). Accordingly, we deny the petition for

review.

PETITION DENIED.