Jian Wu Liu v. Lynch

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