Huayun Liao v. Holder

FILED
NOT FOR PUBLICATION OCT 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HUAYUN LIAO, No. 06-71793
Petitioner, Agency No. A079-277-349
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
HUAYUN LIAO, No. 06-74158
Petitioner, Agency No. A079-277-349
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted October 5, 2010 **
San Francisco, California
Before: RYMER and N.R. SMITH, Circuit Judges, and LEIGHTON, District
Judge.***
Huayun Liao, a native and citizen of China, petitions for review of two
decisions of the Board of Immigration Appeals (BIA): (1) an order affirming an
immigration judge (IJ), which denied his application for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT) based on an
adverse credibility finding, and (2) an order denying Liao’s motion to reopen
proceedings based on the ineffective assistance of his trial counsel and first counsel
on appeal to the BIA. We have jurisdiction pursuant to 8 U.S.C. § 1252 and deny
the petitions for review.
Though many of the IJ’s credibility findings are not justifiable, there is
substantial evidence to support the adverse credibility determination. See Wang v.
INS, 352 F.3d 1250, 1259 (9th Cir. 2003) (“So long as one of the identified
grounds is supported by substantial evidence and goes to the heart of [the] claim of
persecution, we are bound to accept the IJ’s adverse credibility finding.”).
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ronald B. Leighton, United States District Judge for
the Western District of Washington, sitting by designation.
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Although Liao’s written declaration stated he was detained by the police and
forced to write a confession on both January 27 and February 27, 2001, Liao
testified only that he was made to write a statement on February 27. Even if Liao
testified that he didn’t “confess” on January 27 because of the way “confession”
was translated, this doesn’t explain why he failed to testify on direct or cross-
examination that he was required to write a statement of some sort on January 27.
Although “faulty or unreliable translations can undermine the evidence on which
an adverse credibility determination is based,” He v. Ashcroft, 328 F.3d 593, 598
(9th Cir. 2003), substantial evidence shows that the inconsistency between Liao’s
written application and testimony had more to do with prevarication than errors in
translation, cf. Kebede v. Ashcroft, 366 F.3d 808, 811 (9th Cir. 2004). Further, the
IJ’s adverse credibility determination was buttressed by the IJ’s demeanor finding,
which was supported by substantial evidence and specifically and cogently referred
to the non-credible aspects of Liao’s demeanor. See Arulampalam v. Ashcroft, 353
F.3d 679, 686 (9th Cir. 2003).
In the absence of credible testimony, we deny the petition as to Liao’s
asylum and withholding of removal claims. See Farah v. Ashcroft, 348 F.3d 1153,
1156 (9th Cir. 2003). Because Liao’s CAT claim is based entirely on his testimony
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of past persecution that was found not credible, we also deny the petition as to his
CAT claim. See id. at 1156-57.
The BIA did not abuse its discretion in denying Liao’s motion to reopen
based on ineffective assistance of counsel for either his trial or appellate counsel.
Liao’s trial counsel was not ineffective. None of Liao’s alleged errors by Liao’s
trial counsel “‘prevented [Liao] from reasonably presenting his case.’” Rodriguez-
Lariz v. INS, 282 F.3d 1218, 1226 (9th Cir. 2002) (citation omitted). Furthermore,
Liao’s counsel’s failure to properly pursue an I-130 visa petition did not affect the
fairness of Liao’s removal proceedings. See Balam-Chuc v. Mukasey, 547 F.3d
1044, 1050 (9th Cir. 2008). As to appellate counsel, Liao’s argument must also
fail, because he failed to comply with In re Lozada, 19 I & N Dec. 637 (BIA
1988). See Reyes v. Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004).
PETITIONS DENIED.
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