Jincheng Liu v. Eric Holder, Jr. , 537 F. App'x 668 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 15 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JINCHENG LIU, No. 11-72816
Petitioner, Agency No. A088-107-046
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 13, 2013**
San Francisco, California
Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.
Jincheng Liu petitions for review of the Board of Immigration Appeals’s
(“BIA”) order denying his application for asylum, withholding of removal, and
relief under the Convention Against Torture. We have jurisdiction under 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1252. We deny the petition in part, grant in part, and remand for further
proceedings.
Substantial evidence supports the immigration judge’s (“IJ”) determination
that Liu’s claim regarding China’s coercive population control policy was not
credible. The BIA affirmed this determination based on Liu’s omission from his
asylum application of his wife’s forced abortion and the threat of sterilization
directed at him. Under the REAL ID Act, “any inaccuracies, omissions of detail,
or inconsistencies found by the IJ, regardless of whether they go to the ‘heart’ of a
petitioner’s claim, may support an adverse credibility finding.” Tamang v. Holder,
598 F.3d 1083, 1093 (9th Cir. 2010) (citation omitted). Liu’s omission of facts
pivotal to his claim was significant and is sufficient to support an adverse
credibility finding. See, e.g., Kin v. Holder, 595 F.3d 1050, 1057 (9th Cir. 2010)
(upholding adverse credibility finding where petitioners omitted from their asylum
application any mention of their participation in a demonstration that was the entire
basis for their political asylum claim).
Substantial evidence also supports the agency’s determination that Liu did
not establish that he was eligible for protection under the Convention Against
Torture. See 8 C.F.R. § 1208.16(c).
Liu’s due process claim is without merit and is not supported by the record.
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The agency’s finding that Liu did not suffer past persecution because of his
religious beliefs is not supported by substantial evidence. The IJ expressly found
Liu credible on this claim, but determined that Liu’s mistreatment by the police did
not rise to the level of persecution. The IJ misread Guo v. Ashcroft, 361 F.3d 1194
(9th Cir. 2004). Although the petitioner in that case faced repeated mistreatment
by the police, we held that each instance of mistreatment independently rose to the
level of past persecution. Id. at 1203; see also Mihalev v. Ashcroft, 388 F.3d 722,
729 (9th Cir. 2004). Liu’s arrest, detention, interrogation, and physical abuse at
the hands of the police rose to or surpassed the level of what Guo faced in his first
instance of mistreatment. See Guo, 361 F.3d at 1203; see also Quan v. Gonzales,
428 F.3d 883, 888-89 (9th Cir. 2005). Liu’s situation is distinguishable from that
of the petitioner in Gu v. Gonzales, 454 F.3d 1014 (9th Cir. 2006), on which both
the IJ and BIA relied. Unlike Gu, Liu received medical treatment for the injuries
inflicted by the police and lost his job as a result of the incident. See id. at 1020-
21. In addition, Liu was detained for longer than both Guo (in his first detention)
and Gu. See id. at 1018; Guo, 361 F.3d at 1203.
Because the record compels a conclusion that Liu was subjected to past
persecution, we remand this matter to the agency for a determination of whether
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the government can rebut the presumption that Liu has an objectively well-founded
fear of future persecution. See 8 C.F.R. § 208.13(b)(1).
PETITION FOR REVIEW DENIED in part; GRANTED in part; and
REMANDED. Each party shall pay its own costs on appeal.
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