Yi Mei Liu v. Holder

10-2476-ag
Liu v. Holder
BIA
Schoppert, IJ
A099 034 766
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 27th day of September, two thousand eleven.
5
6 PRESENT:
7 JOSEPH M. MCLAUGHLIN,
8 GUIDO CALABRESI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 YI MEI LIU
14 Petitioner,
15
16 v. 10-2476-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Yi Mei Liu, pro se, Brooklyn, NY.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; David V. Bernal, Assistant
27 Director; Lauren E. Fascett, Trial
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of 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
4 is DENIED.
5 Petitioner Yi Mei Liu, a native and citizen of the
6 People’s Republic of China, seeks review of a May 27, 2010,
7 order of the BIA, affirming the September 11, 2008, decision
8 of Immigration Judge (“IJ”) Douglas B. Schoppert, which
9 denied her application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Yi Mei Liu, No. A099 034 766 (B.I.A. May 27, 2010), aff’g
12 No. A099 034 766 (Immig. Ct. N.Y. City Sept. 11, 2008). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008) (per curiam). The applicable standards of review are
19 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
20 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). For
21 applications, such as this one, governed by the REAL ID Act
22 of 2005, the agency may, considering the totality of the
23 circumstances, base a credibility finding on an asylum
2
1 applicant’s demeanor, the plausibility of his account, and
2 inconsistencies in his statements, without regard to whether
3 they go “to the heart of the applicant’s claim.” 8 U.S.C.
4 § 1158(b)(1)(B)(iii); see also Matter of J-Y-C-, 24 I. & N.
5 Dec. 260, 265 (BIA 2007). Analyzed under the REAL ID Act,
6 the agency’s adverse credibility determination is supported
7 by substantial evidence.
8 In finding Liu not credible, the IJ relied in part on
9 her demeanor, noting that she testified “in a somewhat rote
10 manner,” her testimony “at times . . . closely track[ed her]
11 written statement,” and “she did not . . . appear to be
12 testifying from her memory of actual events through which
13 she had lived but, rather, from a script.” Because the IJ
14 was in the best position to observe Liu’s manner while
15 testifying, we accord his demeanor finding particular
16 deference. See Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74
17 (2d Cir. 2004), overruled on other grounds by Shi Liang Lin
18 v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).
19 Moreover, because the IJ identified other reasons to doubt
20 Liu’s credibility, we may confidently rely on the IJ’s
21 demeanor finding. See Li Hua Lin v. U.S. Dep’t of Justice,
22 453 F.3d 99, 109 (2d Cir. 2006).
3
1 In finding Liu not credible, the agency also reasonably
2 relied on the fact that Liu’s testimony before the IJ was
3 inconsistent with her testimony during her credible fear
4 interview. See Diallo v. Gonzales, 445 F.3d 624, 632-33 (2d
5 Cir. 2006). The summary of Liu’s credible fear interview
6 reflects that her employer accused her of distributing Falun
7 Gong material even though Liu, as a Buddhist, had neither an
8 understanding of, nor an interest in, Falun Gong. She
9 testified, in contrast, that she supported Falun Gong in
10 China by telling people of the benefits of its practice,
11 which resulted in her arrest, detention, and beating by
12 village cadres.
13 We have cautioned that when discrepancies arise from an
14 applicant’s statements in an airport or credible fear
15 interview, the agency must closely examine the record of the
16 interview to ensure that it represents a “sufficiently
17 accurate record” of the applicant’s statements to merit
18 consideration in determining whether the applicant is
19 credible. Ming Zhang v. Holder, 585 F.3d 715, 723-25 (2d
20 Cir. 2009); Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d
21 Cir. 2004). Here, the IJ assessed the probative value of
22 Liu’s credible fear interview, noting that Liu acknowledged
4
1 that she had testified falsely under oath that she had no
2 interest in Falun Gong. In addition, in her asylum
3 application, Liu expressly conceded the inconsistencies
4 between her original statement and her revised account.
5 Because Liu acknowledged the discrepancy, our concerns
6 regarding the agency’s reliance on the summary of the
7 credible fear interview are ameliorated. See Diallo, 445
8 F.3d at 633 & n.3.
9 Although Liu explained that she lied during her
10 credible fear interview because the smuggler instructed her
11 to do so, the agency was not required to credit the
12 explanation. See Yun-Zui Guan v. Gonzales, 432 F.3d 391,
13 397 n.6, 399 n.8 (2d Cir. 2005) (per curiam); Majidi v.
14 Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005). Accordingly,
15 given the material differences between Liu’s original
16 statement and her testimony, as well as the demeanor
17 finding, substantial evidence supports the agency’s
18 determination that Liu’s testimony was not credible. See
19 Yun-Zui Guan, 432 F.3d at 400.
20 The agency further found that even if it accepted Liu’s
21 testimony that she had begun practicing Falun Gong in the
22 United States, she failed to demonstrate a well-founded fear
23 of persecution. We have explained that absent evidence of
5
1 past persecution “an alien must make some showing that
2 authorities in his country of nationality are either aware
3 of his activities or likely to become aware of his
4 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143
5 (2d Cir. 2008) (per curiam). As the IJ noted, Liu testified
6 that she practiced Falun Gong only at home alone and that
7 she would not continue to practice Falun Gong in China.
8 Accordingly, Liu failed to demonstrate a well-founded fear
9 of persecution on account of her practice of Falun Gong in
10 the United States. See id. at 142-43. Because the adverse
11 credibility determination is dispositive of Liu’s claim of
12 past persecution, and because she failed to demonstrate a
13 well-founded fear of future persecution, the agency’s denial
14 of asylum and withholding of removal was reasonable. See
15 Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir. 2007)
16 (recognizing that the standard for withholding of removal is
17 higher than that for asylum).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
23 oral argument in this petition is DENIED in accordance with
6
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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