18-2005 Liu v. Garland BIA Loprest, IJ A205 821 621 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 21st day of June, two thousand twenty-one. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 RAYMOND J. LOHIER, JR., 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 MEILING LIU, 14 Petitioner, 15 16 v. 18-2005 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 24 FOR PETITIONER: Joshua Bardavid, Esq., New York, 25 NY. 26
1Pursuant to Fed. R. App. P. 43(c)(2), Merrick B. Garland is automatically substituted as the Respondent. 1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Justin Markel, 3 Senior Litigation Counsel; Gregory 4 A. Pennington, Jr., Trial 5 Attorney, Office of Immigration 6 Litigation, United States 7 Department of Justice, Washington, 8 DC.
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Meiling Liu, a native and citizen of the People’s
14 Republic of China, seeks review of a June 11, 2018, decision
15 of the BIA affirming a July 26, 2017 decision of an
16 Immigration Judge (“IJ”) denying asylum, withholding of
17 removal, and protection under the Convention Against Torture
18 (“CAT”). In re Meiling Liu, No. A 205 821 621 (B.I.A. Jun.
19 11, 2018), aff’g No. A 205 821 621 (Immig. Ct. N.Y. City
20 Jul. 26, 2017). We assume the parties’ familiarity with the
21 underlying facts and procedural history.
22 Under the circumstances of this case, we have reviewed
23 both the IJ’s and BIA’s decisions “for the sake of
24 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
25 524, 528 (2d Cir. 2006). Because Liu contests only the denial
2 1 of her claim of past persecution under the family planning
2 policy, we address only the adverse credibility determination
3 underlying the agency’s denial of relief on that basis. 2 See
4 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d
5 Cir. 2005). Although Liu argues that the agency erred in
6 extending the adverse credibility determination to her fear
7 of future persecution as a Christian, she has not challenged
8 the agency’s alternative dispositive determination that she
9 failed to establish an objectively reasonable fear of future
10 persecution on that basis.
11 We review the adverse credibility determination for
12 substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei
13 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “Considering
14 the totality of the circumstances, and all relevant factors,
15 a trier of fact may base a credibility determination on the
16 demeanor, candor, or responsiveness of the applicant . . . ,
2 Because we may assume hypothetical jurisdiction where, as here, an asylum claim fails on the merits, we do not further address the agency’s denial of asylum as untimely. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”); Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 338 n.2 (2d Cir. 2006) (assuming jurisdiction where jurisdictional bar is statutory, not constitutional, and claim is “plainly without merit”). 3 1 the consistency between the applicant’s or witness’s written
2 and oral statements . . . , the internal consistency of each
3 such statement, the consistency of such statements with other
4 evidence of record . . . without regard to whether an
5 inconsistency, inaccuracy, or falsehood goes to the heart of
6 the applicant’s claim, or any other relevant factor.” 8
7 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
8 credibility determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder
10 could make such an adverse credibility ruling.” Xiu Xia Lin
11 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
12 Gao, 891 F.3d at 76. Substantial evidence supports the
13 adverse credibility determination here.
14 The adverse credibility determination is supported by
15 the IJ’s demeanor finding. We defer to the IJ’s demeanor
16 finding because the IJ was “in the best position to evaluate
17 whether apparent problems in the witness’s testimony suggest
18 a lack of credibility or, rather, can be attributed to an
19 innocent cause such as difficulty understanding the
20 question.” Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104,
21 113 (2d Cir. 2005). Here, the hearing transcript reflects a
4 1 number of times during which Liu was silent in response to
2 straightforward questions on cross-examination.
3 The adverse credibility determination is also supported
4 by the IJ’s finding that Liu’s testimony was vague. See Jin
5 Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003)
6 (holding that “spare” testimony may be indication of
7 fabrication), overruled in part on other grounds by Shi Liang
8 Lin v. U.S. Dept. of Justice, 494 F.3d 296, 305 (2d Cir. 2007)
9 (en banc). As the IJ found, Liu’s direct testimony and
10 written statements were brief. When pressed to expand on
11 some points, such as how she entered the United States, she
12 could not provide details. When Liu noted on cross-
13 examination that she had her intrauterine device (“IUD”)
14 removed prior to leaving China, in violation of the family
15 planning policy, she provided no response when asked why she
16 did not include that information in her prior statements.
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18-2005 Liu v. Garland BIA Loprest, IJ A205 821 621 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 21st day of June, two thousand twenty-one. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 RAYMOND J. LOHIER, JR., 9 RICHARD J. SULLIVAN, 10 Circuit Judges. 11 _____________________________________ 12 13 MEILING LIU, 14 Petitioner, 15 16 v. 18-2005 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 1 21 _____________________________________ 22 23 24 FOR PETITIONER: Joshua Bardavid, Esq., New York, 25 NY. 26
1Pursuant to Fed. R. App. P. 43(c)(2), Merrick B. Garland is automatically substituted as the Respondent. 1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Justin Markel, 3 Senior Litigation Counsel; Gregory 4 A. Pennington, Jr., Trial 5 Attorney, Office of Immigration 6 Litigation, United States 7 Department of Justice, Washington, 8 DC.
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Meiling Liu, a native and citizen of the People’s
14 Republic of China, seeks review of a June 11, 2018, decision
15 of the BIA affirming a July 26, 2017 decision of an
16 Immigration Judge (“IJ”) denying asylum, withholding of
17 removal, and protection under the Convention Against Torture
18 (“CAT”). In re Meiling Liu, No. A 205 821 621 (B.I.A. Jun.
19 11, 2018), aff’g No. A 205 821 621 (Immig. Ct. N.Y. City
20 Jul. 26, 2017). We assume the parties’ familiarity with the
21 underlying facts and procedural history.
22 Under the circumstances of this case, we have reviewed
23 both the IJ’s and BIA’s decisions “for the sake of
24 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
25 524, 528 (2d Cir. 2006). Because Liu contests only the denial
2 1 of her claim of past persecution under the family planning
2 policy, we address only the adverse credibility determination
3 underlying the agency’s denial of relief on that basis. 2 See
4 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d
5 Cir. 2005). Although Liu argues that the agency erred in
6 extending the adverse credibility determination to her fear
7 of future persecution as a Christian, she has not challenged
8 the agency’s alternative dispositive determination that she
9 failed to establish an objectively reasonable fear of future
10 persecution on that basis.
11 We review the adverse credibility determination for
12 substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei
13 Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “Considering
14 the totality of the circumstances, and all relevant factors,
15 a trier of fact may base a credibility determination on the
16 demeanor, candor, or responsiveness of the applicant . . . ,
2 Because we may assume hypothetical jurisdiction where, as here, an asylum claim fails on the merits, we do not further address the agency’s denial of asylum as untimely. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”); Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 338 n.2 (2d Cir. 2006) (assuming jurisdiction where jurisdictional bar is statutory, not constitutional, and claim is “plainly without merit”). 3 1 the consistency between the applicant’s or witness’s written
2 and oral statements . . . , the internal consistency of each
3 such statement, the consistency of such statements with other
4 evidence of record . . . without regard to whether an
5 inconsistency, inaccuracy, or falsehood goes to the heart of
6 the applicant’s claim, or any other relevant factor.” 8
7 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s
8 credibility determination unless, from the totality of the
9 circumstances, it is plain that no reasonable fact-finder
10 could make such an adverse credibility ruling.” Xiu Xia Lin
11 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei
12 Gao, 891 F.3d at 76. Substantial evidence supports the
13 adverse credibility determination here.
14 The adverse credibility determination is supported by
15 the IJ’s demeanor finding. We defer to the IJ’s demeanor
16 finding because the IJ was “in the best position to evaluate
17 whether apparent problems in the witness’s testimony suggest
18 a lack of credibility or, rather, can be attributed to an
19 innocent cause such as difficulty understanding the
20 question.” Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104,
21 113 (2d Cir. 2005). Here, the hearing transcript reflects a
4 1 number of times during which Liu was silent in response to
2 straightforward questions on cross-examination.
3 The adverse credibility determination is also supported
4 by the IJ’s finding that Liu’s testimony was vague. See Jin
5 Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003)
6 (holding that “spare” testimony may be indication of
7 fabrication), overruled in part on other grounds by Shi Liang
8 Lin v. U.S. Dept. of Justice, 494 F.3d 296, 305 (2d Cir. 2007)
9 (en banc). As the IJ found, Liu’s direct testimony and
10 written statements were brief. When pressed to expand on
11 some points, such as how she entered the United States, she
12 could not provide details. When Liu noted on cross-
13 examination that she had her intrauterine device (“IUD”)
14 removed prior to leaving China, in violation of the family
15 planning policy, she provided no response when asked why she
16 did not include that information in her prior statements.
17 Given the lack of explanation and the fact that the IUD
18 requirement was material to her claim of past persecution,
19 the IJ did not err in relying on the omission. See Hong Fei
20 Gao, 891 F.3d at 78, 82 (holding that “the probative value of
21 a witness’s prior silence on particular facts depends on
5 1 whether those facts are ones the witness would reasonably
2 have been expected to disclose”).
3 Having questioned Liu’s credibility, the agency
4 reasonably relied on her failure to corroborate her testimony
5 with reliable evidence. See Biao Yang v. Gonzales, 496 F.3d
6 268, 273 (2d Cir. 2007) (“An applicant’s failure to
7 corroborate his or her testimony may bear on credibility,
8 because the absence of corroboration in general makes an
9 applicant unable to rehabilitate testimony that has already
10 been called into question.”). The agency did not err in
11 declining to credit letters from Liu’s mother, family, and
12 friends in China. See Y.C. v. Holder, 741 F.3d 324, 332, 334
13 (2d Cir. 2013) (holding that the weight of the evidence is a
14 matter of agency discretion and deferring to agency’s
15 decision to afford little weight to spouse’s letter); see
16 also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A.
17 2010) (letters from noncitizen’s friends and family were
18 insufficient to provide substantial support for noncitizen’s
19 claims because they were from interested witnesses not
20 subject to cross-examination), overruled on other grounds by
21 Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012).
6 1 Liu submitted no medical records to corroborate her alleged
2 pregnancy, forced abortion and IUD insertion, ensuing
3 required medical check-ups to monitor the IUD, or her visit
4 to the private clinic to get her IUD removed, despite
5 producing a record of a medical visit for an unrelated illness
6 that she submitted in an attempt to establish her date of
7 entry into the United States.
8 In sum, substantial evidence supported the IJ’s adverse
9 credibility determination. 3 See Xiu Xia Lin, 534 F.3d at
10 165–66. The adverse credibility determination is dispositive
11 of asylum, withholding of removal, and CAT relief because all
12 three forms of relief rely on the same factual predicate.
13 See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
3 We therefore do not reach the agency’s additional plausibility finding relating to Liu’s education and knowledge of the family planning policy or the possible inconsistency between her and her uncle’s versions of his visit to China. See Gurung v. Barr, 929 F.3d 56, 62 (2d Cir. 2019) (noting that remand to the agency would be futile “whenever the reviewing panel is confident that the agency would reach the same result upon a reconsideration cleansed of errors” (internal quotation marks omitted)). 7 1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court