Bi Chun Liu v. Holder , 462 F. App'x 98 ( 2012 )

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