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
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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
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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
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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
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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
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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
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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