Bi Chun Liu v. Holder

10-5117-ag Liu v. Holder BIA Balasquide, IJ A099 936 294 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 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 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 17th day of February, two thousand twelve. 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 RAYMOND J. LOHIER, JR., 10 SUSAN L. CARNEY, 11 Circuit Judges. 12 _______________________________________ 13 14 BI CHUN LIU, 15 Petitioner, 16 17 v. 10-5117-ag 18 NAC 19 20 ERIC H. HOLDER, JR., UNITED STATES 21 ATTORNEY GENERAL 22 Respondent. 23 ______________________________________ 24 25 FOR PETITIONER: Adedayo O. Idowu, New York, New 26 York. 27 28 FOR RESPONDENT: Tony West, Assistant Attorney 29 General; David V. Bernal, Assistant 1 1 Director; Tiffany L. Walters, Trial 2 Attorney, Office of Immigration 3 Litigation, Civil Division, United 4 States Department of Justice, 5 Washington, D.C. 6 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DISMISSED in part and DENIED in part. 11 Petitioner Bi Chun Liu, a native and citizen of China, 12 seeks review of a November 19, 2010 order of the BIA 13 affirming the November 24, 2008 decision of Immigration 14 Judge (“IJ”) Javier Balasquide denying his application for 15 asylum, withholding of removal, and relief under the 16 Convention Against Torture (“CAT”). In re Bi Chun Liu, No. 17 A099 936 294 (B.I.A. Nov. 19, 2010), aff’g No. A099 936 294 18 (Immig. Ct. N.Y. City Nov. 24, 2008). We assume the parties’ 19 familiarity with the underlying facts and procedural history 20 in this case. 21 Under the circumstances of this case, we have reviewed 22 the IJ’s decision as supplemented by the BIA. See Yan Chen 23 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 2 1 applicable standards of review are well-established. See 2 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 3 510, 513 (2d Cir. 2009). 4 We lack jurisdiction to consider Liu’s challenge to the 5 pretermission of his asylum application because he 6 essentially disputes the correctness of the IJ’s factual 7 findings concerning his date of entry. See Li Hua Lin v. 8 U.S. Dep’t of Justice, 453 F.3d 99, 104 (2d Cir. 2006); Xiao 9 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 328-29 (2d 10 Cir. 2006). Accordingly, we dismiss the petition for review 11 as to asylum and address only Liu’s challenges to the denial 12 of withholding of removal and CAT relief. 13 For applications such as Liu’s, governed by the REAL ID 14 Act, the agency may, considering the totality of the 15 circumstances, base a credibility finding on an applicant’s 16 demeanor, the plausibility of his account, or 17 inconsistencies in his statements, without regard to whether 18 they go “to the heart of the applicant’s claim.” 8 U.S.C. 19 § 1158(b)(1)(B)(iii). Substantial evidence supports the 20 agency’s adverse credibility determination. 3 1 The IJ reasonably found implausible Liu’s testimony 2 that he arrived in the United States in October 2006, given 3 his other testimony that he contacted a coworker about 4 possibly leaving China approximately six months after May 5 2006 and then took three additional months to save for a 6 smuggling fee before leaving. See 8 U.S.C. 7 § 1158(b)(1)(B)(iii). As the IJ expressly requested an 8 explanation of Liu’s timeline of events and Liu did not 9 explain to the IJ that he concurrently saved for a fee, 10 Liu’s current assertion that he did so does not compel a 11 contrary conclusion. See Majidi v. Gonzales, 430 F.3d 77, 80 12 (2d Cir. 2005) (“A petitioner must do more than offer a 13 plausible explanation for his inconsistent statements to 14 secure relief; he must demonstrate that a reasonable 15 fact-finder would be compelled to credit his testimony.”) 16 (internal citation omitted). 17 Additionally, the IJ reasonably noted that Liu’s 18 testimony lacked detail because, when asked, he was unable 19 to estimate the number of officers who came to arrest him, 4 1 how many vehicles they brought, or how long he was beaten. 2 Liu’s explanation, that he was under extreme fear, does not 3 compel a contrary conclusion. See Majidi, 430 F.3d at 80. 4 Moreover, the agency reasonably found that Liu’s 5 testimony that his wife suffered a forcible abortion was 6 undermined by the medical evidence he submitted, which 7 indicated that she requested an abortion. Liu’s explanation 8 that the Chinese authorities forced his wife to state that 9 she had requested the abortion does not compel the contrary 10 conclusion, see id., particularly in light of the agency’s 11 observation that the State Department has concluded that 12 China does not issue abortion certificates or other 13 documentation of forced abortions, see Xiao Xing Ni v. 14 Gonzales, 494 F.3d 260, 263 (2d Cir. 2007). 15 Additionally, the agency reasonably found that Liu’s 16 statement before the asylum officer that he ran out of the 17 family planning center when he was released was inconsistent 18 with his later testimony that he did not.1 See Xiu Xia Lin 1 While Liu argues that the IJ erred in relying on the asylum officer’s notes, because he failed to raise this challenge 5 1 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (“[A]n IJ may 2 rely on any inconsistency or omission in making an adverse 3 credibility determination as long as the ‘totality of the 4 circumstances’ establishes that an asylum applicant is not 5 credible”) (emphasis in original). 6 Because the REAL ID Act permits the agency to base a 7 credibility finding on implausibilities and inconsistencies 8 such as these, Liu’s argument that the record compels 9 reversal is unavailing. See 8 U.S.C. § 1158(b)(1)(B)(iii). 10 Because Liu’s claims all were based on the same factual 11 predicate, the agency’s adverse credibility determination is 12 dispositive of both withholding of removal and CAT relief. 13 See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). 14 For the foregoing reasons, the petition for review is 15 DISMISSED in part and DENIED in part. As we have completed 16 our review, any stay of removal that the Court previously 17 granted in this petition is VACATED, and any pending motion before the BIA we decline to consider Liu’s argument. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122, 124 (2d Cir. 2007). 6 1 for a stay of removal in this petition is DISMISSED as moot. 2 Any pending request for oral argument in this petition is 3 DENIED in accordance with Federal Rule of Appellate 4 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 7