Liu v. Garland

Opinion

19-4100 Liu v. Garland BIA

Christensen, IJ

A208 757 028

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 12th day of January, two thousand twenty-two. 5 6 PRESENT: 7 DEBRA ANN LIVINGSTON, 8 Chief Judge, 9 GUIDO CALABRESI, 10 WILLIAM J. NARDINI, 11 Circuit Judges. 12 _____________________________________ 13 14 JIAN YONG LIU, 15 Petitioner, 16 17 v. 19-4100 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: John Son Yong, Esq., New York, 25 NY. 26 27 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 28 Attorney General; Song Park ,

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1 Acting Assistant Director; 2 Madeline Henley, Trial Attorney, 3 Office of Immigration Litigation, 4 United States Department of 5 Justice, Washington, DC.

6 UPON DUE CONSIDERATION of this petition for review of a 7 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 10 Petitioner Jian Yong Liu, a native and citizen of the 11 People’s Republic of China, seeks review of a November 29, 12 2019, decision of the BIA affirming a March 27, 2018, decision 13 of an Immigration Judge (“IJ”) denying asylum, withholding of 14 removal, and relief under the Convention Against Torture 15 (“CAT”). In re Jian Yong Liu, No. A 208 757 028 (B.I.A. Nov. 16 29, 2019), aff’g No. A 208 757 028 (Immig. Ct. N.Y. City Mar. 17 27, 2018). We assume the parties’ familiarity with the 18 underlying facts and procedural history. 19 We have reviewed the IJ’s decision as supplemented by 20 the BIA. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 21 2005). The applicable standards of review are well 22 established. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. 23 Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse 24 credibility determination for substantial evidence).

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1 “Considering the totality of the circumstances, and all 2 relevant factors, a trier of fact may base a credibility 3 determination on . . . the consistency between the applicant’s 4 or witness’s written and oral statements . . . , the internal 5 consistency of each such statement, [or] the consistency of 6 such statements with other evidence of record . . . .” 7 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s 8 adverse credibility determination unless, from the totality 9 of the circumstances, it is plain that no reasonable fact- 10 finder could make such an adverse credibility ruling.” Xiu 11 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord 12 Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports 13 the adverse credibility determination. 14 The agency reasonably relied on inconsistencies between 15 Liu’s testimony and his documentary evidence. See 8 U.S.C. 16 § 1158(b)(1)(B)(iii). Liu testified that he was arrested at 17 an underground church service in February 2016, but he was 18 unable to name the church and stated that there was no record 19 of his attendance. But he submitted a letter from Tangtou 20 City Church certifying that he began attending the church in 21 2016, and that he is a “devout Christian.” When confronted

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1 with this letter, Liu explained that he attended that church 2 as a child and on the one occasion as an adult when he was 3 arrested. But the explanation that he attended as a child 4 conflicts with his prior testimony that he was arrested the 5 first time he attended that church, and the fact that he 6 attended only once as an adult conflicts with the letter’s 7 conclusion that he was a “devout Christian.” The agency was 8 not required to credit Liu’s explanation that he did “not 9 even know how to read anything” and that he “did not sign 10 anything, did not fill out any form” because the explanation 11 did not resolve the inconsistency. See Majidi v. Gonzales, 12 430 F.3d 77, 81 (2d Cir. 2005) (finding that agency need not 13 credit an applicant’s explanations for inconsistent testimony 14 unless those explanations would compel a reasonable 15 factfinder to do so). A letter from Liu’s father does not 16 rehabilitate his testimony because it does not corroborate 17 that he attended church as a child. See Biao Yang v. 18 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicant’s 19 failure to corroborate his or her testimony may bear on 20 credibility, because the absence of corroboration in general

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1 makes an applicant unable to rehabilitate testimony that has 2 already been called into question.”). 3 The agency also reasonably relied on inconsistencies 4 regarding Liu’s practice of Christianity in the United 5 States. Liu testified that he never attended his sister’s 6 church in the United States; but his sister testified that he 7 had accompanied her to her church four or five times when he 8 first arrived in the United States. 9 Liu’s alleged cognitive issues do not undermine the 10 adverse credibility determination because the agency 11 determined that Liu was competent, he does not directly 12 challenge that competency determination, and the record 13 supports the IJ’s conclusion. “[T]he test for determining 14 whether an alien is competent to participate in immigration 15 proceedings is whether he or she has a rational and factual 16 understanding of the nature and object of the proceedings, 17 can consult with the attorney or representative if there is 18 one, and has a reasonable opportunity to examine and present 19 evidence and cross-examine witnesses.” Matter of M-A-M-, 25 20 I. & N. Dec. 474, 479 (B.I.A. 2011). The record supports the 21 IJ’s determination that Liu was competent to proceed because

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1 Liu understood why he was before the IJ, had given his counsel 2 an oral statement and submitted evidence, and was responsive 3 to questions. Id. Moreover, Liu had the safeguard of 4 counsel, and the IJ agreed to be patient if Liu needed 5 additional time to answer. Id. at 481–82 (“Immigration 6 Judges have discretion to determine which safeguards are 7 appropriate, given the particular circumstances in a case 8 before them.”). The psychologist’s report Liu submitted on 9 appeal did not rebut the conclusion of competence because the 10 psychologist concluded that Liu was “cognitively intact.” 11 In sum, given the inconsistencies related to Liu’s 12 practice of Christianity in both China and the United States, 13 the agency’s adverse credibility determination is supported 14 by substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); 15 Xiu Xia Lin, 534 F.3d at 167. The adverse credibility 16 determination is dispositive of asylum, withholding of 17 removal, and CAT relief because all three claims are based on 18 the same factual predicate. See Paul v. Gonzales, 444 F.3d 19 148, 156–57 (2d Cir. 2006).

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1 For the foregoing reasons, the petition for review is 2 DENIED. All pending motions and applications are DENIED and 3 stay VACATED.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court