Ying Liu v. Sessions

16-569 Liu v. Sessions BIA Zagzoug, IJ A087 403 213 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 18th day of August, two thousand seventeen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 GERARD E. LYNCH, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 YING LIU, 14 Petitioner, 15 16 v. 16-569 17 NAC 18 JEFFERSON B. SESSIONS, III, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Aminat Sabak, Yu & Associates PLLC, 24 New York, NY. 25 26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant 27 Attorney General; Briena L. 28 Strippoli, Senior Litigation 29 Counsel; Judith R. O’Sullivan, Trial 30 Attorney, Office of Immigration 31 Litigation, United States 32 Department of Justice, Washington, 33 DC. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 4 DENIED. 5 Petitioner Ying Liu, a native and citizen of the People’s 6 Republic of China, seeks review of a January 28, 2016, decision 7 of the BIA, affirming an August 5, 2014, decision of an 8 Immigration Judge (“IJ”) denying Liu’s application for asylum, 9 withholding of removal, and relief under the Convention Against 10 Torture (“CAT”). In re Ying Liu, No. A087 403 213 (B.I.A. Jan. 11 28, 2016), aff’g No. A087 403 213 (Immig. Ct. N.Y. City Aug. 12 5, 2014). We assume the parties’ familiarity with the 13 underlying facts and procedural history in this case. 14 Under the circumstances of this case, we have reviewed both 15 the IJ’s and the BIA’s opinions “for the sake of completeness.” 16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 17 2006). We review the agency’s adverse credibility 18 determination for substantial evidence. See 8 U.S.C. 19 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 20 (2d Cir. 2008). 21 For asylum applications like Liu’s, governed by the REAL 22 ID Act, the agency may, “[c]onsidering the totality of the 23 circumstances,” base a credibility finding an applicant’s 2 1 “demeanor, candor, or responsiveness,” and on inconsistencies 2 in an applicant’s statements and evidence, “without regard to 3 whether” those inconsistencies go “to the heart of the 4 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 5 Lin, 534 F.3d at 163-64. “We defer . . . to an IJ’s credibility 6 determination unless, from the totality of the circumstances, 7 it is plain that no reasonable fact-finder could make such an 8 adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. 9 Substantial evidence supports the adverse credibility 10 determination. 11 I. Religious-Based Persecution 12 The crux of Liu’s religious-based persecution claim is that 13 she fears persecution because, on one occasion, she was caught 14 distributing religious flyers and, as a result, the police 15 wanted to arrest her. The IJ reasonably relied on 16 inconsistencies between Liu’s credible fear interview and her 17 application and testimony. See 8 U.S.C. § 1158(b)(1)(B)(iii). 18 The inconsistencies are reflected in the record and concern the 19 contents of the flyers, Liu’s family members’ participation in 20 the distribution of flyers, and her interaction with the police 21 in the immediate aftermath of the incident. 8 U.S.C. 22 § 1158(b)(1)(B)(iii). To the extent Liu challenges the 23 reliability of the credible fear interview, we need not reach 3 1 her unexhausted challenge. See Lin Zhong v. U.S. Dep’t of 2 Justice, 480 F.3d 104, 122 (2d Cir. 2007). Regardless, the 3 interview record is sufficiently reliable: it sets out the 4 questions and responses, was conducted in a language Liu 5 requested, and the questions were designed to elicit an asylum 6 claim. See Ming Zhang v. Holder, 585 F.3d 715, 724-25 (2d Cir. 7 2009). The agency was not compelled to credit Liu’s 8 explanations that she forgot or did not know. See Majidi v. 9 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005). Because these 10 inconsistencies go directly to the reason Liu allegedly fled 11 China, they provide substantial evidence for the adverse 12 credibility determination. See Xian Tuan Ye v. Dep’t of 13 Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006). 14 The adverse credibility determination is bolstered by the 15 agency’s findings regarding demeanor and corroboration. We 16 defer to the demeanor finding, particularly given the evidence 17 of Liu’s difficulty answering questions or providing 18 explanations for inconsistencies. Majidi, 430 F.3d at 81 n.1; 19 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 20 2006). Moreover, Liu failed to call either her husband or 21 brothers to testify to confirm either past events or her 22 practice of Christianity. See Biao Yang v. Gonzales, 496 F.3d 23 268, 273 (2d Cir. 2007); Yan Juan Chen v. Holder, 658 F.3d 246, 4 1 253 (2d Cir. 2011). 2 II. Forced Abortion 3 The adverse credibility determination extends to Liu’s 4 claim that she suffered a forced abortion under China’s family 5 planning policy. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d 6 Cir. 2007). And it is independently supported given the lack 7 of detail and reliable corroboration. As the agency concluded, 8 Liu’s testimony regarding the abortion lacked detail. 8 U.S.C. 9 § 1158(b)(1)(B)(iii); Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 10 152 (2d Cir. 2003), overruled in part on other grounds by Shi 11 Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir. 12 2007). And her evidence—an abortion certificate and a letter 13 from her father—were insufficient to rehabilitate her 14 credibility: Liu could not explain how she came to possess the 15 certificate and her father’s letter was more detailed than Liu’s 16 own testimony. See Biao Yang, 496 F.3d at 273; Y.C. v. Holder, 17 741 F.3d 324, 334 (2d Cir. 2013) (deferring to weight IJ gave 18 to evidence). Nor did the IJ err in requiring evidence 19 corroborating Liu’s forced abortion, such as Liu’s husband’s 20 testimony. 8 U.S.C. § 1158(b)(1)(B)(ii); Yan Juan Chen, 658 21 F.3d at 253. 22 Given the multiple inconsistencies, the demeanor finding, 23 and the lack of reliable corroborating evidence, the totality 5 1 of the circumstances supports the adverse credibility 2 determination. Xiu Xia Lin, 534 F.3d at 167. The adverse 3 credibility determination is dispositive of asylum, 4 withholding of removal, and CAT relief because all three forms 5 of relief are based on the same factual predicates. Paul v. 6 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 7 For the foregoing reasons, the petition for review is 8 DENIED. 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 6