16-3041 Liang v. Sessions BIA Van Wyke, IJ A093 343 091 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 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 30th day of August, two thousand eighteen. 5 6 PRESENT: BARRINGTON D. PARKER, 7 REENA RAGGI, 8 CHRISTOPHER F. DRONEY, 9 Circuit Judges. 10 _____________________________________ 11 12 WENCHAO LIANG, 13 Petitioner, 14 15 v. No. 16-3041 16 NAC 17 JEFFERSON B. SESSIONS III, 18 UNITED STATES ATTORNEY GENERAL, 19 Respondent. 20 ____________________________________ 21 22 FOR PETITIONER: Thomas V. Massucci, Esq., New 23 York, New York. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Margaret Kuehne 27 Taylor, Senior Litigation Counsel; 28 Patricia E. Bruckner, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 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 Wenchao Liang, a native and citizen of the
6 People’s Republic of China, seeks review of the BIA’s
7 affirmance of an Immigration Judge’s (“IJ’s”) denial of
8 Liang’s application for asylum, withholding of removal, and
9 relief under the Convention Against Torture (“CAT”). See In
10 re Wenchao Liang, No. A 093 343 091 (B.I.A. Aug. 11, 2016),
11 aff’g No. A 093 343 091 (Immig. Ct. N.Y. City Mar. 4, 2015).
12 Under the circumstances of this case, we review both the BIA’s
13 and IJ’s decisions, see Yun-Zui Guan v. Gonzales, 432 F.3d
14 391, 394 (2d Cir. 2005), applying well established standards
15 of review, see 8 U.S.C. § 1252(b)(4); Xiu Xia Lin v. Mukasey,
16 534 F.3d 162, 165 (2d Cir. 2008). In so doing, we assume the
17 parties’ familiarity with the underlying facts and procedural
18 history of this case, which we reference only as necessary to
19 explain our decision to deny the petition.
20 For asylum applicants such as Liang, the agency may,
21 “[c]onsidering the totality of the circumstances,” base a
22 credibility finding on the applicant’s “demeanor, candor, or
23 responsiveness,” the plausibility of his account, and 2 1 inconsistencies in his statements and other record evidence
2 “without regard to whether an inconsistency, inaccuracy, or
3 falsehood goes to the heart of the applicant’s claim.” 8
4 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534
5 F.3d at 163-64. “We defer . . . to an IJ’s credibility
6 determination unless, from the totality of the circumstances,
7 it is plain that no reasonable fact-finder could make such an
8 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
9 F.3d at 167.
10 Here, the agency reasonably relied on discrepancies in
11 the record in finding that Liang was not credible as to his
12 claims of past persecution. Specifically, there was a
13 discrepancy between Liang’s testimony and his written
14 statements related to the activities of the Shanghai Union
15 for Self-Salvation of Families of Religious Persecution
16 Victims (“Shanghai Union”), which Liang helped organize to
17 press the government to release individuals detained on
18 religious grounds. Although Liang’s written statements
19 described an active organization that sought to obtain
20 justice for incarcerated family members, recruited members,
21 demanded the release of prisoners, and raised money, his
22 testimony revealed a much less developed organization that
23 had existed for only 17 days, had taken little action, and 3 1 had not accomplished its goals. The agency permissibly
2 relied on this discrepancy in concluding that Liang’s written
3 statements were misleading in their descriptions of Shanghai
4 Union as an active organization. See 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d at 167
6 (“[A]n IJ may rely on any inconsistency or omission in making
7 an adverse credibility determination as long as the totality
8 of the circumstances establishes that an asylum applicant is
9 not credible.” (emphasis in original) (internal quotation
10 marks omitted)).
11 The agency also reasonably found it implausible that
12 Liang was arrested for belonging to a nascent and all-but
13 unknown organization whose members had not undertaken
14 protests or any public activities to further the group’s
15 goals. See 8 U.S.C. § 1158(b)(1)(b)(iii) (the “inherent
16 plausibility of the applicant’s . . . account” is a ground
17 for an adverse credibility determination); Wensheng Yan v.
18 Mukasey, 509 F.3d 63, 66-67 (2d Cir. 2007) (same). Liang
19 testified that someone reported the Shanghai Union’s
20 activities to the authorities, and that he was subsequently
21 arrested, detained, interrogated, beaten, and forced to
22 guarantee that he would not engage in political activities.
23 The IJ was not compelled to credit this testimony in light of 4 1 Liang’s never having publicly opposed the government. See
2 Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007)
3 (reasoning that although “bald” speculation is an
4 impermissible basis for an adverse credibility finding,
5 “[t]he speculation that inheres in inference is not ‘bald’ if
6 the inference is made available to the factfinder by record
7 facts, or even a single fact, viewed in the light of common
8 sense and ordinary experience”); Ming Xia Chen v. BIA, 435
9 F.3d 141, 145 (2d Cir. 2006) (holding that implausibility
10 finding will be overturned only if “we are left with the
11 definite and firm conviction that a mistake has been
12 committed” (internal quotation marks omitted)).
13 Moreover, the agency reasonably found implausible
14 Liang’s testimony that he did not learn details about his
15 father’s conversion to Christianity or his religious
16 practices, given that Liang’s father was purportedly twice
17 arrested for his religious convictions and those arrests and
18 ensuing detentions were the events that allegedly galvanized
19 Liang’s involvement in an anti-government organization. See
20 Siewe v. Gonzales, 480 F.3d at 168-69.
21 In addition, the IJ’s findings regarding demeanor and
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16-3041 Liang v. Sessions BIA Van Wyke, IJ A093 343 091 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 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 30th day of August, two thousand eighteen. 5 6 PRESENT: BARRINGTON D. PARKER, 7 REENA RAGGI, 8 CHRISTOPHER F. DRONEY, 9 Circuit Judges. 10 _____________________________________ 11 12 WENCHAO LIANG, 13 Petitioner, 14 15 v. No. 16-3041 16 NAC 17 JEFFERSON B. SESSIONS III, 18 UNITED STATES ATTORNEY GENERAL, 19 Respondent. 20 ____________________________________ 21 22 FOR PETITIONER: Thomas V. Massucci, Esq., New 23 York, New York. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Margaret Kuehne 27 Taylor, Senior Litigation Counsel; 28 Patricia E. Bruckner, Trial 29 Attorney, Office of Immigration 30 Litigation, United States 31 Department of Justice, Washington, 32 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 Wenchao Liang, a native and citizen of the
6 People’s Republic of China, seeks review of the BIA’s
7 affirmance of an Immigration Judge’s (“IJ’s”) denial of
8 Liang’s application for asylum, withholding of removal, and
9 relief under the Convention Against Torture (“CAT”). See In
10 re Wenchao Liang, No. A 093 343 091 (B.I.A. Aug. 11, 2016),
11 aff’g No. A 093 343 091 (Immig. Ct. N.Y. City Mar. 4, 2015).
12 Under the circumstances of this case, we review both the BIA’s
13 and IJ’s decisions, see Yun-Zui Guan v. Gonzales, 432 F.3d
14 391, 394 (2d Cir. 2005), applying well established standards
15 of review, see 8 U.S.C. § 1252(b)(4); Xiu Xia Lin v. Mukasey,
16 534 F.3d 162, 165 (2d Cir. 2008). In so doing, we assume the
17 parties’ familiarity with the underlying facts and procedural
18 history of this case, which we reference only as necessary to
19 explain our decision to deny the petition.
20 For asylum applicants such as Liang, the agency may,
21 “[c]onsidering the totality of the circumstances,” base a
22 credibility finding on the applicant’s “demeanor, candor, or
23 responsiveness,” the plausibility of his account, and 2 1 inconsistencies in his statements and other record evidence
2 “without regard to whether an inconsistency, inaccuracy, or
3 falsehood goes to the heart of the applicant’s claim.” 8
4 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534
5 F.3d at 163-64. “We defer . . . to an IJ’s credibility
6 determination unless, from the totality of the circumstances,
7 it is plain that no reasonable fact-finder could make such an
8 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
9 F.3d at 167.
10 Here, the agency reasonably relied on discrepancies in
11 the record in finding that Liang was not credible as to his
12 claims of past persecution. Specifically, there was a
13 discrepancy between Liang’s testimony and his written
14 statements related to the activities of the Shanghai Union
15 for Self-Salvation of Families of Religious Persecution
16 Victims (“Shanghai Union”), which Liang helped organize to
17 press the government to release individuals detained on
18 religious grounds. Although Liang’s written statements
19 described an active organization that sought to obtain
20 justice for incarcerated family members, recruited members,
21 demanded the release of prisoners, and raised money, his
22 testimony revealed a much less developed organization that
23 had existed for only 17 days, had taken little action, and 3 1 had not accomplished its goals. The agency permissibly
2 relied on this discrepancy in concluding that Liang’s written
3 statements were misleading in their descriptions of Shanghai
4 Union as an active organization. See 8 U.S.C.
5 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d at 167
6 (“[A]n IJ may rely on any inconsistency or omission in making
7 an adverse credibility determination as long as the totality
8 of the circumstances establishes that an asylum applicant is
9 not credible.” (emphasis in original) (internal quotation
10 marks omitted)).
11 The agency also reasonably found it implausible that
12 Liang was arrested for belonging to a nascent and all-but
13 unknown organization whose members had not undertaken
14 protests or any public activities to further the group’s
15 goals. See 8 U.S.C. § 1158(b)(1)(b)(iii) (the “inherent
16 plausibility of the applicant’s . . . account” is a ground
17 for an adverse credibility determination); Wensheng Yan v.
18 Mukasey, 509 F.3d 63, 66-67 (2d Cir. 2007) (same). Liang
19 testified that someone reported the Shanghai Union’s
20 activities to the authorities, and that he was subsequently
21 arrested, detained, interrogated, beaten, and forced to
22 guarantee that he would not engage in political activities.
23 The IJ was not compelled to credit this testimony in light of 4 1 Liang’s never having publicly opposed the government. See
2 Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007)
3 (reasoning that although “bald” speculation is an
4 impermissible basis for an adverse credibility finding,
5 “[t]he speculation that inheres in inference is not ‘bald’ if
6 the inference is made available to the factfinder by record
7 facts, or even a single fact, viewed in the light of common
8 sense and ordinary experience”); Ming Xia Chen v. BIA, 435
9 F.3d 141, 145 (2d Cir. 2006) (holding that implausibility
10 finding will be overturned only if “we are left with the
11 definite and firm conviction that a mistake has been
12 committed” (internal quotation marks omitted)).
13 Moreover, the agency reasonably found implausible
14 Liang’s testimony that he did not learn details about his
15 father’s conversion to Christianity or his religious
16 practices, given that Liang’s father was purportedly twice
17 arrested for his religious convictions and those arrests and
18 ensuing detentions were the events that allegedly galvanized
19 Liang’s involvement in an anti-government organization. See
20 Siewe v. Gonzales, 480 F.3d at 168-69.
21 In addition, the IJ’s findings regarding demeanor and
22 corroboration bolster the agency’s adverse credibility
23 determination. We generally give “particular deference” to 5 1 adverse credibility determinations “that are based on the
2 adjudicator’s observation of the applicant’s demeanor.” Li
3 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir.
4 2006) (internal quotation marks omitted). The record
5 supports the IJ’s conclusion that Liang’s answers to
6 questions about his father’s arrests were hesitant and
7 nonresponsive, that Liang answered several questions with
8 questions of his own, and that the government attorney had to
9 repeat questions to elicit complete answers. See id. (“We
10 can be still more confident in our review of observations
11 about an applicant’s demeanor where, as here, they are
12 supported by specific examples of inconsistent testimony.”).
13 The agency also reasonably relied on the lack of evidence
14 corroborating Liang’s involvement in the Shanghai Union or
15 his father’s arrests. See Biao Yang v. Gonzales, 496 F.3d
16 268, 273 (2d Cir. 2007) (“An applicant’s failure to
17 corroborate his or her testimony may bear on credibility,
18 because the absence of corroboration in general makes an
19 applicant unable to rehabilitate testimony that has already
20 been called into question.”). The IJ reasonably gave
21 diminished weight to documents and letters from China because
22 the drafters were unavailable for cross-examination and the
23 documents were unauthenticated by anything other than Liang’s 6 1 own testimony. See Shunfu Li v. Mukasey, 529 F.3d 141, 149
2 (2d Cir. 2008) (affording IJs “considerable flexibility in
3 determining the authenticity of . . . documents from the
4 totality of the evidence and in using documents found to be
5 authentic in making an overall assessment of the credibility
6 of a petitioner’s testimony and, ultimately, of h[is]
7 persecution claim”); Matter of H-L-H- & Z-Y-Z-, 25 I. & N.
8 Dec. 209, 214-15 & n.5 (B.I.A. 2010) (according limited weight
9 to unauthenticated documents and to letters from witnesses
10 who are not subject to cross-examination), abrogated on other
11 grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir.
12 2012).
13 In sum, (1) discrepancies regarding the degree to which
14 Shanghai Union was an active organization at the time of
15 Liang’s arrest; (2) the implausibility of Liang’s professed
16 arrest and purported ignorance of his father’s practice of
17 Christianity; (3) the nonresponsiveness of Liang’s testimony;
18 and (4) the absence of reliable corroborating evidence,
19 provide substantial evidence to support the agency’s adverse
20 credibility determination. See 8 U.S.C.
21 § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d at
22 167. Moreover, the adverse credibility determination is
23 dispositive of Liang’s claims for asylum, withholding of 7 1 removal, and CAT relief, because all rest on the same factual
2 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
3 Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED.
6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court