14-3205
Liu v. Lynch
BIA
Vomacka, IJ
A089 840 662
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 1st day of March, two thousand sixteen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 JIAN WU LIU,
14 Petitioner,
15
16 v. 14-3205
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Mona Liza F. Lao, New York, New York.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Greg D.
27 Mack, Senior Litigation Counsel;
28 Aaron D. Nelson, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a Board
2 of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
3 ADJUDGED, AND DECREED that the petition for review is DENIED.
4 Petitioner Jian Wu Liu, a native and citizen of the People’s
5 Republic of China, seeks review of an August 7, 2014, decision
6 of the BIA, affirming a December 10, 2012, decision of an
7 Immigration Judge (“IJ”) denying Liu’s application for asylum,
8 withholding of removal, and relief under the Convention Against
9 Torture (“CAT”). In re Jian Wu Liu, No. A089 840 662 (B.I.A.
10 Aug. 7, 2014), aff’g No. A089 840 662 (Immig. Ct. N.Y. City Dec.
11 10, 2012). We assume the parties’ familiarity with the
12 underlying facts and procedural history in this case.
13 Under the circumstances of this case, the Court has reviewed
14 both the IJ’s and the BIA’s decisions “for the sake of
15 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
16 524, 528 (2d Cir. 2006). The applicable standards of review are
17 well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
18 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). The agency may,
19 “[c]onsidering the totality of the circumstances,” base a
20 credibility finding on inconsistencies in an asylum applicant’s
21 statements and other record evidence “without regard to whether”
22 they go “to the heart of the applicant’s claim.” 8 U.S.C.
23 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
2
1 Substantial evidence supports the agency’s determination that
2 Liu was not credible.
3 The agency reasonably relied on record inconsistencies
4 regarding when Liu began distributing Falun Gong flyers, whether
5 he was attacked by police with a stick, and what injuries he
6 suffered. See Xiu Xia Lin, 534 F.3d at 166-67. Liu’s testimony
7 was also inconsistent with his credible fear interview regarding
8 whether he is a Falun Gong practitioner. See id.; see also Ming
9 Zhang v. Holder, 585 F.3d 715, 725 (2d Cir 2009). When questioned
10 about these discrepancies, Liu’s answers were nonresponsive.
11 The agency was therefore not compelled to credit them. See
12 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).
13 Having questioned Liu’s credibility, the agency reasonably
14 relied further on his failure to provide sufficient
15 corroborating evidence as to his alleged practice of Falun Gong
16 in the United States. See Biao Yang v. Gonzales, 496 F.3d 268,
17 273 (2d Cir. 2007). The agency did not err in declining to credit
18 an affidavit from Liu’s cousin stating that she had seen him
19 practice Falun Gong because she failed to appear as a witness
20 when scheduled and thus was not available for cross-examination.
21 See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013); Xiao Ji
22 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).
3
1 Given the inconsistency and corroboration findings,
2 substantial evidence supports the agency’s adverse credibility
3 determination. See Xiu Xia Lin, 534 F.3d at 165-66. That
4 finding is dispositive of asylum, withholding of removal, and
5 CAT relief because all three claims are based on the same factual
6 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
7 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument in
13 this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2) and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
4