Li Liu v. Lynch

14-966
Liu v. Lynch
BIA
Zagzoug, IJ
A200 745 418
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 6th day of May, two thousand fifteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 LI LIU,
14 Petitioner,
15
16 v. 14-966
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.1
22 _____________________________________
23
24 FOR PETITIONER: David A. Bredin, Flushing, New York.
25
26
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 RESPONDENT: Joyce R. Branda, Acting Assistant
2 Attorney General; Kiley Kane, Senior
3 Litigation Counsel; Arthur L. Rabin,
4 Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
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 is
12 DENIED.
13 Petitioner Li Liu, a native and citizen of the People’s
14 Republic of China, seeks review of a March 6, 2014, decision
15 of the BIA affirming a September 8, 2011, decision of an
16 Immigration Judge (“IJ”) denying Liu’s application for asylum,
17 withholding of removal, and relief under the Convention Against
18 Torture (“CAT”). In re Li Liu, No. A200 745 418 (B.I.A. Mar.
19 6, 2014), aff’g No. A200 745 418 (Immig. Ct. N.Y. City Sept.
20 8, 2011). We assume the parties’ familiarity with the
21 underlying facts and procedural history in this case.
22 Under the circumstances of this case, we have reviewed the
23 decision of the IJ as supplemented by the BIA. See Yan Chen
24 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
25 standards of review are well established. Xiu Xia Lin v.
2
1 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008); Salimatou Bah v.
2 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). The agency may,
3 “[c]onsidering the totality of the circumstances,” base a
4 credibility finding on an asylum applicant’s demeanor, the
5 plausibility of her account, and inconsistencies in her
6 statements and other record evidence “without regard to
7 whether” they go “to the heart of the applicant’s claim.”
8 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
9 Substantial evidence supports the agency’s determination that
10 Liu was not credible.
11 The agency reasonably relied on Liu’s demeanor, noting that
12 her responsive testimony on direct examination changed
13 significantly upon cross-examination, when her testimony
14 became evasive. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also
15 Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005). The
16 agency’s demeanor finding and the overall credibility
17 determination were bolstered by Liu’s inconsistent statements
18 regarding whether doctors in China told her that she would be
19 unable to use an intra-uterine device due to uterine damage
20 caused by an abortion. See Li Hua Lin v. U.S. Dep’t of Justice,
21 453 F.3d 99, 109 (2d Cir. 2006); see also Xiu Xia Lin, 534 F.3d
3
1 at 165-67. The agency also reasonably relied in part on Liu’s
2 admission that she made false statements to U.S. consular
3 officials to enter the United States at a time when she was not
4 fleeing persecution. See Siewe v. Gonzales, 480 F.3d 160, 170
5 (2d Cir. 2007).
6 Having questioned Liu’s credibility, the agency reasonably
7 relied further on her failure to provide certain corroborating
8 evidence to rehabilitate her testimony. See Biao Yang v.
9 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The IJ did not err
10 in giving diminished weight to Liu’s brother-in-law’s letter
11 because it was prepared for litigation and the author was an
12 interested party not subject to cross-examination. See Y.C.
13 v. Holder, 741 F.3d 324, 332 (2d Cir. 2013); Xiao Ji Chen v.
14 U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006).
15 Moreover, as the BIA concluded, Liu failed to demonstrate that
16 the IJ violated her due process rights by declining to provide
17 her additional time to obtain corroborating evidence because
18 she did not establish that she was prejudiced as a result. See
19 Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008).
20 Given the demeanor, inconsistency, false statement, and
21 corroboration findings, the agency’s adverse credibility
4
1 determination is supported by substantial evidence. See
2 8 U.S.C. § 1158(b)(1)(B)(iii). That finding is dispositive of
3 asylum, withholding of removal, and CAT relief insofar as they
4 were based on Liu’s family planning claim. See Paul v.
5 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006). We lack
6 jurisdiction to review the IJ’s denial of CAT relief independent
7 of the credibility determination because Liu did not challenge
8 the IJ’s decision to that extent before the BIA. See Karaj v.
9 Gonzales, 462 F.3d 113, 119 & n.2 (2d Cir. 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O=Hagan Wolfe, Clerk
5