16-406
Liu v. Sessions
BIA
Christensen, IJ
A077 718 725
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
29th day of June, two thousand seventeen.
PRESENT:
GUIDO CALABRESI,
JOSÉ A. CABRANES,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
DONGKAI LIU,
Petitioner,
v. 16-406
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, Yerman & Jia, LLC,
New York, NY.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Russel
J.E. Verby, Senior Litigation
Counsel; John D. Williams, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Dongkai Liu, a native and citizen of the
People’s Republic of China, seeks review of a January 19, 2016,
decision of the BIA, affirming a November 6, 2014, decision of
an Immigration Judge (“IJ”) denying Liu’s application for
asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Dongkai Liu, No. A077 718 725
(B.I.A. Jan. 19, 2016), aff’g No. A077 718 725 (Immig. Ct. N.Y.
City Nov. 6, 2014). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed both
the IJ’s and the BIA’s opinions “for the sake of completeness.”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
For asylum applications like Liu’s, which are governed by
the REAL ID Act, the agency may, “[c]onsidering the totality
of the circumstances,” base a credibility finding on an
applicant’s “demeanor, candor, or responsiveness,” and on
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inconsistencies in an applicant’s statements and evidence,
“without regard to whether” those inconsistencies go “to the
heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “We
defer . . . to an IJ’s credibility determination unless, from
the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin, 534 F.3d at 167.
The agency reasonably relied on inconsistencies concerning
the alleged November 2011 phone call from the police warning
Liu to stop attending an underground church. 8 U.S.C.
§ 1158(b)(1)(B)(iii). Liu first testified that he received
the call at home during his lunch break, but later testified
that he received the call at his parents’ home. The IJ was not
required to credit Liu’s explanation that this testimony was
actually consistent because he would eventually inherit his
parents’ home as his own because, as explained below, Liu’s
testimony about where he lived was also inconsistent. In order
to prevail after an adverse credibility determination based in
part on a failure to explain an inconsistency, “[a] petitioner
must do more than offer a plausible explanation for his
inconsistent statements to secure relief; he must demonstrate
that a reasonable fact-finder would be compelled to credit his
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testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)
(internal quotation marks omitted). Liu has not made that
showing here.
The agency also reasonably relied on inconsistencies
concerning Liu’s residence. Liu testified that he and his wife
lived in housing provided by the factory that employed him.
When asked how his wife was able to remain in factory housing
in July 2012 if he was fired from the factory in January 2012,
he changed his testimony and said that he did not live in factory
housing but that his home “was privately owned.” C.A.R. 21.
In his brief, he argues that he “never testified that he lived
in factory-owned housing after he was fired,” but that assertion
is contradicted by his testimony. Pet. Br. 13.
The adverse credibility determination is further bolstered
by the omission in Liu’s wife’s letter of the alleged July 2012
police visits. “An inconsistency and an omission
are . . . functionally equivalent.” Xiu Xia Lin, 534 F.3d at
166 n.3. The IJ was not required to credit Liu’s explanation
that his wife told him about the visits over the phone, thereby
making their exclusion from her letter reasonable. Majidi, 430
F.3d at 80; see also Xiu Xia Lin, 534 F.3d at 166-67 & n.3.
The IJ’s demeanor finding, to which we defer, further
supports the adverse credibility determination. Majidi, 430
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F.3d at 81 n.1. The IJ observed that Liu was evasive and “became
hesitant and unresponsive to certain questions, particularly
with regard to his living situation in China and where he was
when he received an initial phone call from the police.” C.A.R.
53. Liu challenges the demeanor finding on the basis that
neither the IJ nor the Government attorney noted his demeanor
on the record. The inconsistencies outlined above, however,
support the demeanor finding. We are “more confident in our
review of observations about an applicant’s demeanor where, as
here, they are supported by specific examples of inconsistent
testimony.” Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99,
109 (2d Cir. 2006); see Majidi, 430 F.3d at 81 n.1.
Having concluded that Liu was not credible, the agency did
not err in further finding that Liu’s corroborating evidence
was insufficient to rehabilitate his testimony. “An
applicant’s failure to corroborate his . . . testimony may bear
on credibility, because the absence of corroboration in general
makes an applicant unable to rehabilitate testimony that has
already been called into question.” Biao Yang v. Gonzales, 496
F.3d 268, 273 (2d Cir. 2007). “We defer to the agency’s
determination of the weight afforded to an alien’s documentary
evidence.” Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013)
The agency reasonably gave diminished weight to letters
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from Liu’s wife and friends in China because they were authored
by interested parties not subject to cross-examination. See
Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)
(agency can give little weight to document drafted by interested
witness not subject to cross examination), rev’d on other
grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).
The IJ also reasonably gave diminished weight the fine receipt
allegedly issued by the Public Security Bureau because it was
unauthenticated and did not identify to what the fine related.
Given the inconsistencies, the demeanor finding, and Liu’s
lack of reliable corroboration, it cannot be said “that no
reasonable fact-finder could make [an adverse] credibility
ruling.” Xiu Xia Lin, 534 F.3d at 167. Because asylum,
withholding of removal, and CAT relief were all based on the
same factual predicate, the adverse credibility determination
resolves all of Liu’s claims. Paul v. Gonzales, 444 F.3d 148,
156-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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