Yanping Liu v. Loretta Lynch , 644 F. App'x 301 ( 2016 )

Case: 14-60871 Document: 00513437075 Page: 1 Date Filed: 03/24/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60871
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 24, 2016
YANPING LIU,
Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A087 843 319
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Petitioner Yanping Liu, a native and citizen of the People’s Republic of
China, has petitioned for review of the order of the Board of Immigration
Appeals (BIA) affirming the Immigration Judge’s (IJ) denial of her application
for asylum, withholding of removal, and protection under the Convention
Against Torture (CAT). In affirming the denial of relief, the BIA upheld the
IJ’s findings that Liu was not credible because of inconsistencies and omissions
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-60871
in her testimony and her asylum application, and because she failed to provide
reasonably available corroborating evidence.
Liu contends that the adverse credibility determination was erroneous
because it was premised on the finding that she gave additional and more
detailed information in her testimony than she provided in her written asylum
application. Liu also claims that many of the omissions and inconsistencies
that the IJ and BIA found were “minor” or had nothing to do with the merits
of her claims of past or future persecution. Finally, Liu insists that the IJ
committed error by not providing her with advance notice that she would be
required to offer corroborating evidence in support of her claims.
We review the order of the BIA, and we will consider the underlying
decision of the IJ to the extent it was relied on by the BIA. Theodros v.
Gonzales, 490 F.3d 396, 400 (5th Cir. 2007). Here, the BIA’s decision regarding
asylum, withholding of removal, and CAT relief was based primarily on its
affirmance of the IJ’s adverse credibility finding. On review, we will defer to a
credibility ruling “unless, from the totality of the circumstances, it is plain that
no reasonable fact finder could make such an adverse credibility ruling.” Wang
v. Holder, 569 F.3d 531, 538 (5th Cir. 2009) (internal quotation marks and
citation omitted). The IJ may rely on any inconsistency or omission in making
an adverse credibility determination so long as the totality of the
circumstances shows that the asylum applicant is not credible. Id.The differences between Liu’s testimony and her written asylum
application constituted inconsistencies or omissions that support the IJ’s
adverse credibility finding based on the totality of the circumstances. See 8
U.S.C. § 1158(b)(1)(B)(iii); 8 U.S.C. § 1231(b)(3)(C); Wang, 569 F.3d at 538. In
this case, BIA relied on five such inconsistencies or omissions in upholding the
IJ’s ruling. That those inconsistences or omissions might have been minor or
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No. 14-60871
irrelevant to whether Liu suffered past persecution or was likely to suffer
future persecution is of no moment. The IJ may rely on any inconsistency or
omission in making a credibility determination, even if it does not go “to the
heart of the applicant’s claim, or any other relevant factor.” 8 U.S.C. §
1158(b)(1)(B)(iii). In addition to the inconsistencies and omissions, the IJ
found Liu’s testimony to be vague, sparse, lacking in detail and non-responsive.
When combined with the fact that, based on a totality of the circumstances,
Liu offered only scant evidence to corroborate her testimony, we cannot say
that no reasonable factfinder could disbelieve Liu’s testimony or that the
evidence compels a conclusion that she was credible. Wang, 569 F.3d at 538.
Citing Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011), Liu claims that the
IJ committed error because he did not give her notice that she was required to
offer evidence to corroborate her claims. As a preliminary matter, Liu did not
specifically raise this claim before the BIA, so we lack jurisdiction to address
it. See § 1252(d)(1); Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004) (alien’s
failure to exhaust administrative remedies is a jurisdictional bar to our
consideration of the issue). Additionally, the IJ’s adverse credibility
determination was not based solely on Liu’s failure to produce corroborating
evidence. It was also based on the inconsistencies and omissions noted by the
IJ and the BIA and on the IJ’s assessment of Liu’s demeanor and the overall
tenor of her testimony. Her contention is further belied by her testimony that
she knew she was required to provide corroborating evidence because her
previous attorney told her as much. Finally, Section 208(b)(1)(B)(ii) of the
REAL ID Act, which governs the burden of proof in asylum proceedings, clearly
contemplates that corroborating evidence might be required, putting Liu on
notice of the consequences of failing to adduce corroborating evidence. See 8
U.S.C. § 1158(b)(1)(B)(ii).
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We review the BIA’s factual determination that an alien is not eligible
for asylum, withholding of removal, or CAT relief under the substantial
evidence standard. Wang, 569 F.3d at 537. In light of the adverse credibility
finding against Liu, she has not shown that the BIA’s denial of asylum was
unsupported by substantial evidence. Because Liu’s asylum claim fails, her
withholding of removal claim must also fail. See Efe v. Ashcroft, 293 F.3d 899,
906 (5th Cir. 2002); Chun v. INS, 40 F.3d 76, 78-79 (5th Cir. 1994). Moreover,
because Liu fails to brief any challenge to the BIA’s denial of her CAT claim
meaningfully, she has waived any such challenge. Sanders v. Unum Life Ins.
Co. of Am., 553 F.3d 922, 926-27 (5th Cir. 2008).
The petition for review is DISMISSED in part and DENIED in part.
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