10-4808-ag
Liu v. Holder
BIA
Laforest, IJ
A088 380 450
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 YULAN LIU, AKA XIANG QIN MENG,
15 Petitioner,
16
17 v. 10-4808-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL
21 Respondent.
22 ______________________________________
23
24
25 FOR PETITIONER: Matthew J. Harris, Law Office of
26 Theodore M. Davis, Long Island City,
27 NY.
28
29 FOR RESPONDENT: Tony West, Assistant Attorney
30 General; Ada E. Bosque, Senior
31 Litigation Counsel; Puneet Cheema,
32 Trial Attorney, Office of
33 Immigration Litigation, Civil
34 Division, United States Department
35 of Justice, Washington, D.C.
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
4 is DENIED.
5 Petitioner Yulan Liu, a native and citizen of China,
6 seeks review of a November 9, 2010 order of the BIA
7 affirming the December 8, 2008 decision of Immigration Judge
8 (“IJ”) Brigitte Laforest denying Liu’s application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Yulan Liu, No.
11 A088 380 450 (B.I.A. Nov. 9, 2010), aff’g No. A088 380 450
12 (Immig. Ct. N.Y. City Dec. 8, 2008). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
20 510, 513 (2d Cir. 2009). Because Liu has not challenged the
21 agency’s pretermission of her asylum application, we
22 consider only her claims for withholding of removal and CAT
2
1 relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
2 n.1, 545 n.7 (2d Cir. 2005).
3 Here, the agency reasonably found that Liu was not
4 credible because she could not answer questions about
5 articles she claimed to have written for the Chinese
6 Democracy Party (“CDP”). See 8 U.S.C. § 1158(b)(1)(B)(iii)
7 (providing that for asylum applications governed by the REAL
8 ID Act, the agency may, “[c]onsidering the totality of the
9 circumstances,” base a credibility finding on an asylum
10 applicant’s “responsiveness” and inconsistencies in her
11 statements without regard to whether they go “to the heart
12 of the applicant’s claim”). Although Liu argues that these
13 articles were not submitted to demonstrate her knowledge,
14 she testified before the IJ that she wrote them and thus the
15 fact that she did not have knowledge of their contents
16 indicated that she gave false or misleading testimony, and
17 that false testimony is substantial evidence of a lack of
18 credibility. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d
19 Cir. 2007) (relying on the maxim falsus in uno, falsus in
20 omnibus to find that once an IJ concludes that a document is
21 false, he or she is “free to deem suspect other documents
22 (and to disbelieve other testimony) that depend for
23 probative weight upon [the applicant’s] veracity”).
3
1 Having found that Liu’s credibility was in doubt, the
2 agency reasonably expected her to provide some corroboration
3 in order to rehabilitate her testimony. See Biao Yang v.
4 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). In light of
5 Liu’s misleading testimony, the IJ did not err in giving
6 little weight to the unsworn letters she submitted because
7 the IJ had no opportunity to question the letters’ authors.
8 Moreover, the IJ reasonably gave little weight to Liu’s
9 husband’s letter because its account of why Liu protested at
10 her factory (that the factory had not been paying its
11 workers for months, without any mention that the factory had
12 closed) differed from Liu’s account (that the factory had
13 closed without any mention that it had not been paying its
14 workers for months).
15 Additionally, Liu failed to provide any medical
16 evidence establishing that she was hospitalized following
17 the protest or that she received any other medical treatment
18 for her alleged injuries, and was thus unable to corroborate
19 her explanation that she could not answer questions about
20 the articles she claimed to have written because of injuries
21 she suffered during the protest. The IJ was not
22 unreasonable in concluding that such evidence would have
4
1 been available despite a change in the hospital’s name, or
2 that Liu could have at least obtained documentation that her
3 prior records were no longer available. See 8 U.S.C. §
4 1252(b)(4) (“No court shall reverse a determination made by
5 a trier of fact with respect to the availability of
6 corroborating evidence . . . unless the court finds . . .
7 that a reasonable trier of fact is compelled to conclude
8 that such corroborating evidence is unavailable.”).
9 Together, the IJ’s findings that Liu was not truthful
10 concerning whether she wrote the CDP articles and that she
11 did not provide sufficient corroborating evidence to
12 rehabilitate her testimony provide substantial evidence in
13 support of the agency’s adverse credibility determination.
14 See 8 U.S.C. § 1158(b)(1)(B)(iii). Liu is correct that the
15 IJ did not make any explicit demeanor finding in evaluating
16 her credibility. Therefore, the BIA mischaracterized the
17 IJ’s decision when it stated that the IJ’s demeanor finding
18 supported the credibility determination. The BIA’s
19 mischaracterization does not require remand, however,
20 because the IJ identified “ample, error-free grounds that
21 provide substantial evidence to support [the] adverse
22 credibility determination,” and, despite the BIA’s error,
5
1 “we can state with confidence that the IJ would adhere to
2 his decision were the petition remanded.” Singh v. BIA, 438
3 F.3d 145, 149 (2d Cir. 2006) (quotation omitted).
4 The agency’s adverse credibility determination
5 forecloses Liu’s eligibility for withholding of removal
6 based on past persecution as she did not establish that the
7 factory protest truly occurred. See Paul v. Gonzales, 444
8 F.3d 148, 156 (2d Cir. 2006). Additionally, the agency
9 reasonably determined that Liu did not establish a
10 likelihood that she would be persecuted or tortured if
11 returned to China based on her CDP activities because her
12 husband’s letter, stating that the authorities knew about
13 the activities, was not reliable; the authorities were
14 unlikely to know or have reason to know of her activities
15 based either on her name in the articles or photographs
16 taken in the United States; and she did not credibly
17 establish that she would continue pro-democracy activities
18 in China. Liu’s reliance on reports describing the
19 imprisonment of two individuals in China for publishing
20 articles on United States-based websites is unavailing
21 because these 2002 and 2006 incidents do not compel the
22 conclusion that Liu will more likely than not be mistreated.
6
1 Accordingly, substantial evidence supports the agency’s
2 determination that Liu did not establish her eligibility for
3 withholding of removal or CAT relief. See Hongsheng Leng v.
4 Mukasey, 528 F.3d 135, 141 (2d Cir. 2008).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
7