Liu v. Garland

     18-2005
     Liu v. Garland
                                                                            BIA
                                                                      Loprest, IJ
                                                                    A205 821 621
                           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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 21st day of June, two thousand twenty-one.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            RAYMOND J. LOHIER, JR.,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   MEILING LIU,
14            Petitioner,
15
16                    v.                                  18-2005
17                                                        NAC
18   MERRICK B. GARLAND, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent. 1
21   _____________________________________
22
23
24   FOR PETITIONER:                  Joshua Bardavid, Esq., New York,
25                                    NY.
26

     1Pursuant to Fed. R. App. P. 43(c)(2), Merrick B. Garland is
     automatically substituted as the Respondent.
 1   FOR RESPONDENT:                    Brian Boynton, Acting Assistant
 2                                      Attorney General; Justin Markel,
 3                                      Senior Litigation Counsel; Gregory
 4                                      A. Pennington, Jr., Trial
 5                                      Attorney, Office of Immigration
 6                                      Litigation, United States
 7                                      Department of Justice, Washington,
 8                                      DC.

 9          UPON DUE CONSIDERATION of this petition for review of a

10   Board of Immigration Appeals (“BIA”) decision, it is hereby

11   ORDERED, ADJUDGED, AND DECREED that the petition for review

12   is DENIED.

13          Meiling   Liu,    a   native    and     citizen    of   the   People’s

14   Republic of China, seeks review of a June 11, 2018, decision

15   of   the   BIA   affirming     a     July    26,   2017   decision     of   an

16   Immigration      Judge   (“IJ”)      denying    asylum,     withholding     of

17   removal, and protection under the Convention Against Torture

18   (“CAT”).      In re Meiling Liu, No. A 205 821 621 (B.I.A. Jun.

19   11, 2018), aff’g No. A 205 821 621 (Immig. Ct. N.Y. City

20   Jul. 26, 2017).       We assume the parties’ familiarity with the

21   underlying facts and procedural history.

22          Under the circumstances of this case, we have reviewed

23   both    the   IJ’s    and    BIA’s     decisions     “for      the   sake   of

24   completeness.”       Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

25   524, 528 (2d Cir. 2006).        Because Liu contests only the denial

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 1   of her claim of past persecution under the family planning

 2   policy, we address only the adverse credibility determination

 3   underlying the agency’s denial of relief on that basis. 2 See

 4   Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d

 5   Cir. 2005).    Although Liu argues that the agency erred in

 6   extending the adverse credibility determination to her fear

 7   of future persecution as a Christian, she has not challenged

 8   the agency’s alternative dispositive determination that she

 9   failed to establish an objectively reasonable fear of future

10   persecution on that basis.

11        We   review   the   adverse   credibility   determination   for

12   substantial evidence.      See 8 U.S.C. § 1252(b)(4)(B); Hong Fei

13   Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).      “Considering

14   the totality of the circumstances, and all relevant factors,

15   a trier of fact may base a credibility determination on the

16   demeanor, candor, or responsiveness of the applicant . . . ,



     2 Because we may assume hypothetical jurisdiction where, as here,
     an asylum claim fails on the merits, we do not further address the
     agency’s denial of asylum as untimely. See INS v. Bagamasbad, 429
     U.S. 24, 25 (1976) (“As a general rule courts and agencies are not
     required to make findings on issues the decision of which is
     unnecessary to the results they reach.”); Ivanishvili v. U.S. Dep’t
     of Justice, 433 F.3d 332, 338 n.2 (2d Cir. 2006) (assuming
     jurisdiction   where   jurisdictional   bar   is   statutory,   not
     constitutional, and claim is “plainly without merit”).
                                        3
 1   the consistency between the applicant’s or witness’s written

 2   and oral statements . . . , the internal consistency of each

 3   such statement, the consistency of such statements with other

 4   evidence   of    record   .   .    .   without   regard   to   whether   an

 5   inconsistency, inaccuracy, or falsehood goes to the heart of

 6   the applicant’s claim, or any other relevant factor.”                      8

 7   U.S.C. § 1158(b)(1)(B)(iii).               “We defer . . . to an IJ’s

 8   credibility determination unless, from the totality of the

 9   circumstances, it is plain that no reasonable fact-finder

10   could make such an adverse credibility ruling.”                Xiu Xia Lin

11   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei

12   Gao, 891 F.3d at 76.              Substantial evidence supports the

13   adverse credibility determination here.

14       The adverse credibility determination is supported by

15   the IJ’s demeanor finding.             We defer to the IJ’s demeanor

16   finding because the IJ was “in the best position to evaluate

17   whether apparent problems in the witness’s testimony suggest

18   a lack of credibility or, rather, can be attributed to an

19   innocent     cause    such    as       difficulty   understanding        the

20   question.”      Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104,

21   113 (2d Cir. 2005).       Here, the hearing transcript reflects a


                                            4
 1   number of times during which Liu was silent in response to

 2   straightforward questions on cross-examination.

3        The adverse credibility determination is also supported

4    by the IJ’s finding that Liu’s testimony was vague.               See Jin

5    Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003)

 6   (holding   that   “spare”   testimony     may       be   indication    of

 7   fabrication), overruled in part on other grounds by Shi Liang

 8   Lin v. U.S. Dept. of Justice, 494 F.3d 296, 305 (2d Cir. 2007)

 9   (en banc).     As the IJ found, Liu’s direct testimony and

10   written statements were brief.          When pressed to expand on

11   some points, such as how she entered the United States, she

12   could   not   provide   details.       When   Liu    noted   on    cross-

13   examination that she had her intrauterine device (“IUD”)

14   removed prior to leaving China, in violation of the family

15   planning policy, she provided no response when asked why she

16   did not include that information in her prior statements.

17   Given the lack of explanation and the fact that the IUD

18   requirement was material to her claim of past persecution,

19   the IJ did not err in relying on the omission.             See Hong Fei

20   Gao, 891 F.3d at 78, 82 (holding that “the probative value of

21   a witness’s prior silence on particular facts depends on


                                        5
 1   whether those facts are ones the witness would reasonably

 2   have been expected to disclose”).

 3          Having     questioned    Liu’s        credibility,      the     agency

 4   reasonably relied on her failure to corroborate her testimony

 5   with reliable evidence.        See Biao Yang v. Gonzales, 496 F.3d

 6   268,     273    (2d   Cir.   2007)    (“An      applicant’s    failure    to

 7   corroborate his or her testimony may bear on credibility,

 8   because the absence of corroboration in general makes an

 9   applicant unable to rehabilitate testimony that has already

10   been called into question.”).               The agency did not err in

11   declining to credit letters from Liu’s mother, family, and

12   friends in China.        See Y.C. v. Holder, 741 F.3d 324, 332, 334

13   (2d Cir. 2013) (holding that the weight of the evidence is a

14   matter    of    agency    discretion      and    deferring    to     agency’s

15   decision to afford little weight to spouse’s letter); see

16   also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A.

17   2010) (letters from noncitizen’s friends and family were

18   insufficient to provide substantial support for noncitizen’s

19   claims    because     they   were    from    interested      witnesses   not

20   subject to cross-examination), overruled on other grounds by

21   Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012).


                                           6
1    Liu submitted no medical records to corroborate her alleged

2    pregnancy,    forced    abortion    and     IUD   insertion,     ensuing

3    required medical check-ups to monitor the IUD, or her visit

4    to   the   private   clinic   to   get    her   IUD   removed,   despite

5    producing a record of a medical visit for an unrelated illness

6    that she submitted in an attempt to establish her date of

7    entry into the United States.

8         In sum, substantial evidence supported the IJ’s adverse

 9   credibility determination. 3       See Xiu Xia Lin, 534 F.3d at

10   165–66.    The adverse credibility determination is dispositive

11   of asylum, withholding of removal, and CAT relief because all

12   three forms of relief rely on the same factual predicate.

13   See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

14

15

16

17


     3 We therefore do not reach the agency’s additional plausibility
     finding relating to Liu’s education and knowledge of the family
     planning policy or the possible inconsistency between her and her
     uncle’s versions of his visit to China. See Gurung v. Barr, 929
     F.3d 56, 62 (2d Cir. 2019) (noting that remand to the agency would
     be futile “whenever the reviewing panel is confident that the
     agency would reach the same result upon a reconsideration cleansed
     of errors” (internal quotation marks omitted)).
                                        7
1       For the foregoing reasons, the petition for review is

2   DENIED.   All pending motions and applications are DENIED and

3   stays VACATED.

4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe,
6                               Clerk of Court




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