DocketNumber: 15-2301
Citation Numbers: 674 F. App'x 76
Filed Date: 1/9/2017
Status: Non-Precedential
Modified Date: 1/13/2023
15-2301 Liu v. Lynch BIA Sichel, IJ A088 827 636 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 9th day of January, two thousand seventeen. 5 6 PRESENT: 7 RICHARD C. WESLEY, 8 DENNY CHIN, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 YIPING LIU, AKA YI PING LIU, 14 Petitioner, 15 16 v. 15-2301 17 NAC 18 LORETTA E. LYNCH, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Michael A. O. Brown, Law Offices of 24 Michael Brown, PC, New York, N.Y. 25 26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 27 Assistant Attorney General; Anthony 28 P. Nicastro, Acting Assistant 29 Director; Sabatino F. Leo, Trial 30 Attorney, Office of Immigration 31 Litigation, U.S. Department of 32 Justice, Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 4 DISMISSED IN PART and DENIED IN PART. 5 Petitioner Yiping Liu, a native and citizen of China, seeks 6 review of a June 23, 2015 decision of the BIA affirming a March 7 21, 2014 decision of an Immigration Judge (“IJ”), denying Liu’s 8 application for asylum, withholding of removal, and relief 9 under the Convention Against Torture (“CAT”). In re Yiping 10 Liu, No. A088 827 636 (B.I.A. June 23, 2015), aff’g No. A088 11 827 636 (Immig. Ct. N.Y. City Mar. 21, 2014). We assume the 12 parties’ familiarity with the underlying facts and procedural 13 history in this case. 14 We have reviewed both the IJ’s and BIA’s decisions. 15 Yun-Zui Guan v. Gonzales,432 F.3d 391
, 394 (2d Cir. 2005). The 16 applicable standards of review are well established. 8 U.S.C. 17 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,534 F.3d 162
, 165-66 18 (2d Cir. 2008). 19 I. Asylum 20 We dismiss as untimely Liu’s petition relating to the 21 agency’s pretermission of his asylum application. An asylum 22 application must be filed within one year of an applicant’s 23 arrival in the United States, absent changed or extraordinary 2 1 circumstances. 8 U.S.C. § 1158(a)(2)(B), (D). We lack 2 jurisdiction to review a denial of asylum on timeliness grounds. 3 8 U.S.C. § 1158(a)(3). Although we retain jurisdiction to 4 review “constitutional claims or questions of law,” 8 U.S.C. 5 § 1252(a)(2)(D), Liu’s argument that the agency erred by 6 finding that he did not establish extraordinary circumstances 7 does not present a reviewable claim or question, see 8 Joaquin-Porras v. Gonzales,435 F.3d 172
, 180 (2d Cir. 2006). 9 II. Credibility 10 For applications governed by the REAL ID Act, like Liu’s, 11 the agency may, considering the totality of the circumstances, 12 base a credibility finding on an applicant’s demeanor, the 13 plausibility of his account, and inconsistencies in his 14 statements and other record evidence without regard to whether 15 they go “to the heart of the applicant’s claim.” 8 U.S.C. 16 § 1158(b)(1)(B)(iii); Xiu XiaLin, 534 F.3d at 163-64
. We 17 defer to an IJ’s credibility determination “unless . . . it is 18 plain that no reasonable fact-finder could make such an adverse 19 credibility ruling.” Xiu XiaLin, 534 F.3d at 167
. Further, 20 “[a] petitioner must do more than offer a plausible explanation 21 for his inconsistent statements to secure relief; he must 22 demonstrate that a reasonable fact-finder would be compelled 23 to credit his testimony.” Majidi v. Gonzales,430 F.3d 77
, 80 3 1 (2d Cir. 2005) (quotation marks omitted). Here, substantial 2 evidence supports the agency’s adverse credibility 3 determination. 4 First, the agency reasonably relied on inconsistencies 5 between Liu’s application and testimony about how he 6 distributed Falun Gong fliers. See Xiu XiaLin, 534 F.3d at 7
163-64. Liu stated in his application and testified on direct 8 that he disguised the Falun Gong fliers with advertisements and 9 put them into mailboxes in the middle of the night. However, 10 Liu testified on cross-examination that he did not disguise the 11 fliers with advertisements. The IJ was not compelled to accept 12 Liu’s explanation that he had perhaps misunderstood the 13 question.Majidi, 430 F.3d at 80
. 14 Second, the agency reasonably relied on inconsistencies 15 between Liu’s application and testimony concerning the timeline 16 for his release from detention and escape from China. See Xiu 17 XiaLin, 534 F.3d at 163-64
. Liu stated in his application that 18 he was detained for five days following his February 2000 19 arrest, went into hiding soon after his release, left China on 20 March 29, 2000, and arrived in the United States on September 21 23, 2000. However, Liu testified on both direct and 22 cross-examination that he went into hiding on September 20 or 23 22, 2000 and arrived in the United States on September 23, 2000. 4 1 Liu was asked how he could have gone into hiding on September 2 22, but arrived in the United States the next day; Liu paused 3 and then responded that he left China on March 29, 2000. He 4 also stated at various points that he went into hiding on 5 February 20, February 22, and March 20, 2000. The IJ was not 6 compelled to accept Liu’s explanations, which only created 7 additional inconsistencies. SeeMajidi, 430 F.3d at 80
. 8 Third, the agency reasonably relied on Liu’s father’s 9 inconsistent testimony. See Xiu XiaLin, 534 F.3d at 163-64
. 10 Liu’s father initially testified that Liu did not get into any 11 trouble in China; he was immediately asked that same question 12 again, however, and testified that Liu had been arrested. The 13 IJ was entitled to reject Liu’s father’s explanation that he 14 was nervous and forgot about Liu’s arrest. Majidi,430 F.3d 15
at 80. 16 Fourth, the agency reasonably relied on the implausibility 17 of certain aspects of Liu’s claimed Falun Gong activities in 18 China. See Xiu XiaLin, 534 F.3d at 167
-68. The agency found 19 implausible Liu’s claims that he learned but did not practice 20 Falun Gong in China because he was afraid of getting caught after 21 the government’s 1999 crackdown, and that he felt comfortable 22 distributing fliers only because he was a minor. That finding 23 is reasonably supported by the entire record. See Ying Li v. 5 1 Bureau of Citizenship & Immigration Servs.,529 F.3d 79
, 82 (2d 2 Cir. 2008). 3 In short, the agency’s adverse credibility determination 4 is supported by substantial evidence. See 8 U.S.C. § 5 1158(b)(1)(B)(iii); Xiu XiaLin, 534 F.3d at 167
. That 6 determination is dispositive of Liu’s claims for withholding 7 of removal and CAT relief because those claims are based on the 8 same factual predicate. See Paul v. Gonzales,444 F.3d 148
, 9 156-57 (2d Cir. 2006). 10 For the foregoing reasons, the petition for review is 11 DISMISSED IN PART and DENIED IN PART. As we have completed our 12 review, any stay of removal that the Court previously granted 13 in this petition is VACATED, and any pending motion for a stay 14 of removal in this petition is DENIED as moot. Any pending 15 request for oral argument in this petition is DENIED in 16 accordance with Federal Rule of Appellate Procedure 34(a)(2), 17 and Second Circuit Local Rule 34.1(b). 18 FOR THE COURT: 19 Catherine O=Hagan Wolfe, Clerk 6
Victor Paul v. Alberto Gonzales, Attorney General of the ... , 444 F.3d 148 ( 2006 )
Ying Li v. Bureau of Citizenship & Immigration Services , 529 F.3d 79 ( 2008 )
Xiu Xia Lin v. Mukasey , 534 F.3d 162 ( 2008 )
Yun-Zui Guan v. Alberto R. Gonzales, United States Attorney ... , 432 F.3d 391 ( 2005 )
Jose Joaquin-Porras v. Alberto Gonzales, Attorney General ... , 435 F.3d 172 ( 2006 )
Sk Shahriair Majidi v. Alberto Gonzales, Attorney General ... , 430 F.3d 77 ( 2005 )