Jianru Liu v. Lynch ( 2015 )

14-17
Liu v. Lynch
BIA
Cheng, IJ
A200 184 452
A098 056 008
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 15th day of May, two thousand fifteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10
11 Circuit Judges.
12 _____________________________________
13
14 JIANRU LIU, JIANHUA LIN,
15 Petitioners,
16
17 v. 14-17
18 NAC
19
20 LORETTA E. LYNCH, UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.1
23
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch is automatically substituted
for former Attorney General Eric H. Holder, Jr.
1 FOR PETITIONERS: Khaghendra Gharti-Chhetry, Esq.,
2 Chhetry & Associates, P.C., New
3 York, NY.
4
5 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
6 Attorney General; Ernesto H. Molina,
7 Jr., Assistant Director; Jeffery R.
8 Leist, Attorney, Office of
9 Immigration Litigation, United
10 States Department of Justice,
11 Washington, DC.
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED that the petition for review
15 is DENIED.
16 Jianru Liu and Jianhua Lin, natives and citizens of
17 China, seek review of a December 13, 2013, decision of the
18 BIA, affirming the April 10, 2012, decision of an
19 Immigration Judge (“IJ”), denying asylum, withholding of
20 removal, and relief pursuant to the Convention Against
21 Torture (“CAT”). In re Jianru Liu, Jianhua Lin, Nos. A200-
22 184-452, 098-056-008 (B.I.A. Dec. 13, 2013), aff’g Nos.
23 A200-184-452, 098-056-008 (Immig. Ct. N.Y.C. Apr. 10, 2012).
24 We assume the parties’ familiarity with the underlying facts
25 and procedural history in this case.
26 We have reviewed the IJ’s decision as modified by the
27 BIA decision. See Xue Hong Yang v. U.S. Dep’t of Justice,
2
1 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards
2 of review are well established. See 8 U.S.C.
3 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
4 (2d Cir. 2009).
5 For asylum applications governed by the REAL ID Act of
6 2005, the agency may, “[c]onsidering the totality of the
7 circumstances,” base a credibility determination on an
8 asylum applicant’s demeanor, the plausibility of his
9 account, and inconsistencies in his statements and other
10 record evidence, “without regard to whether” they go “to the
11 heart of the applicant’s claim.” 8 U.S.C.
12 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
13 credibility determination unless, from the totality of the
14 circumstances, it is plain that no reasonable fact-finder
15 could make such an adverse credibility ruling.” Xiu Xia Lin
16 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
17 The agency reasonably relied in part on Liu’s demeanor,
18 noting that he was at times unresponsive and hesitant. See
19 8 U.S.C. § 1158(b)(1)(B)(iii); Shu Wen Sun v. BIA, 510 F.3d
20 377, 381 (2d Cir. 2007). That finding is supported by the
21 record. The agency’s demeanor finding and the credibility
22 determination as a whole were bolstered by inconsistencies
23 and omissions in the record related to whether members of
3
1 Liu’s church in China were beaten and whether the church
2 building was later demolished. See Li Hua Lin v. U.S. Dep’t
3 of Justice, 453 F.3d 99, 109 (2d Cir. 2006); Xiu Xia Lin,
4 534 F.3d at 166 n.3. The agency was not compelled to credit
5 his explanations for these inconsistencies and omissions.
6 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
7 Having questioned Liu’s credibility, the agency reasonably
8 relied further on his failure to provide corroborating
9 testimony or statements from members of his church in the
10 United States. See Biao Yang v. Gonzales, 496 F.3d 268, 273
11 (2d Cir. 2007).
12 Given the demeanor, inconsistency, and corroboration
13 findings, substantial evidence supports the agency’s adverse
14 credibility determination. See Xiu Xia Lin, 534 F.3d at
15 165-66. That determination is dispositive of asylum,
16 withholding of removal, and CAT, as those claims are based
17 on the same factual predicate.2 Paul v. Gonzales, 444 F.3d
18 148, 156-57 (2d Cir. 2006).
1.
Lin’s application for asylum, withholding of removal,
and CAT relief was based on the same grounds as the
application filed by Liu, the lead applicant. The
petitioners have not challenged, and we decline to address,
the IJ’s alternative finding that Lin’s application
independently failed on the merits. See Yueqing Zhang v.
Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005).
4
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
5