20-838 Liu v. Garland BIA Zagzoug, IJ A208 921 888 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 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 11th day of July, two thousand twenty-two. 5 6 PRESENT: 7 ROBERT D. SACK, 8 RAYMOND J. LOHIER, JR., 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 XUXING LIU, 14 Petitioner, 15 16 v. 20-838 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gerald Karikari, Esq., New York, 24 NY. 25 26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; Greg 28 D. Mack, Senior Litigation 1 Counsel; Corey L. Farrell, 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 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 Xuxing Liu, a native and citizen of the
11 People’s Republic of China, seeks review of a February 13,
12 2020 decision of the BIA affirming an April 13, 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 Xuxing Liu, No. A 208 921 888 (B.I.A. Feb.
16 13, 2020), aff’g No. A 208 921 888 (Immig. Ct. N.Y. City Apr.
17 13, 2018). We assume the parties’ familiarity with the
18 underlying facts and procedural history.
19 Under the circumstances, we review the IJ’s decision as
20 modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of
21 Justice, 426 F.3d 520, 522 (2d Cir. 2005). To determine
22 whether an asylum applicant has sustained his burden of proof,
23 the agency “weigh[s] credible testimony along with other
24 evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(ii). We find 2 1 no error in the agency’s conclusion that Liu failed to meet
2 his burden of proof as to his claim of past persecution on
3 account of his practice of Christianity.
4 Substantial evidence supports the agency’s adverse
5 credibility determination. See 8 U.S.C. § 1252(b)(4)(B);
6 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
7 “Considering the totality of the circumstances, and all
8 relevant factors, a trier of fact may base a credibility
9 determination on the demeanor, candor, or responsiveness of
10 the applicant or witness, . . . the consistency between the
11 applicant’s or witness’s written and oral statements . . . ,
12 the internal consistency of each such statement, [and] the
13 consistency of such statements with other evidence of record
14 . . . without regard to whether an inconsistency, inaccuracy,
15 or falsehood goes to the heart of the applicant’s claim, or
16 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
17 “We defer . . . to an IJ’s credibility determination unless,
18 from the totality of the circumstances, it is plain that no
19 reasonable fact-finder could make such an adverse credibility
20 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
21 2008); accord Hong Fei Gao, 891 F.3d at 76.
3 1 The agency appropriately relied on inconsistencies and
2 an omission relating to whether the police continued to look
3 for Liu in China. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai
4 Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a
5 single inconsistency might preclude an alien from showing
6 that an IJ was compelled to find him credible. Multiple
7 inconsistencies would so preclude even more forcefully.”).
8 Liu wrote that the police returned to his parents’ home on
9 several occasions after he left China, threatening his
10 parents that he would be “arrested and detained for ten years”
11 and “punished severely” if he did not return and report to
12 them. He similarly testified that he would be detained for
13 at least ten years if he returned. However, on cross-
14 examination, he testified that he would visit his parents in
15 China if the IJ granted him asylum, and expressed uncertainty
16 about whether police had any active interest in him. The IJ
17 correctly found that these responses “undermine[d] both the
18 subjective fear and the objective fear” central to Liu’s
19 asylum application, which was based on fear of being harmed
20 by police who were actively looking for him. Certified
21 Administrative Record at 74. Although voluntary return trips
4 1 to one’s home country are not necessarily evidence of a lack
2 of credibility, the agency reasonably relied on Liu’s
3 statement because it undermined his allegation that he would
4 be arrested if he returned—an allegation qualified only by
5 Liu’s statement on cross-examination that he would want to
6 know if it was safe for him to return and whether the police
7 were still looking for him. Id.; see Kone v. Holder, 596
8 F.3d 141, 150–51 (2d Cir. 2010). Moreover, a 2018 letter
9 from Liu’s mother did not mention police visits or threats
10 after Liu arrived in the United States in 2016. See Xiu Xia
11 Lin, 534 F.3d at 167 (permitting consideration of
12 discrepancies between the petitioner’s testimony and letters
13 from third parties); see also Hong Fei Gao, 891 F.3d at 78–
14 79, 81 (cautioning against reliance on omissions in third-
15 party statements but holding that the probative value of an
16 omission depends on whether the omitted facts are ones that
17 an applicant or witness “would reasonably have been expected
18 to disclose under the relevant circumstances”). Liu’s
19 explanation that his mother did not refer to those incidents
20 in her letter because she told him about them previously was
21 not compelling because the letter was addressed to the IJ and
5 1 submitted to support the asylum claim. See Majidi v.
2 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
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20-838 Liu v. Garland BIA Zagzoug, IJ A208 921 888 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 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 11th day of July, two thousand twenty-two. 5 6 PRESENT: 7 ROBERT D. SACK, 8 RAYMOND J. LOHIER, JR., 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 XUXING LIU, 14 Petitioner, 15 16 v. 20-838 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gerald Karikari, Esq., New York, 24 NY. 25 26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; Greg 28 D. Mack, Senior Litigation 1 Counsel; Corey L. Farrell, 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 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 Xuxing Liu, a native and citizen of the
11 People’s Republic of China, seeks review of a February 13,
12 2020 decision of the BIA affirming an April 13, 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 Xuxing Liu, No. A 208 921 888 (B.I.A. Feb.
16 13, 2020), aff’g No. A 208 921 888 (Immig. Ct. N.Y. City Apr.
17 13, 2018). We assume the parties’ familiarity with the
18 underlying facts and procedural history.
19 Under the circumstances, we review the IJ’s decision as
20 modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of
21 Justice, 426 F.3d 520, 522 (2d Cir. 2005). To determine
22 whether an asylum applicant has sustained his burden of proof,
23 the agency “weigh[s] credible testimony along with other
24 evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(ii). We find 2 1 no error in the agency’s conclusion that Liu failed to meet
2 his burden of proof as to his claim of past persecution on
3 account of his practice of Christianity.
4 Substantial evidence supports the agency’s adverse
5 credibility determination. See 8 U.S.C. § 1252(b)(4)(B);
6 Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).
7 “Considering the totality of the circumstances, and all
8 relevant factors, a trier of fact may base a credibility
9 determination on the demeanor, candor, or responsiveness of
10 the applicant or witness, . . . the consistency between the
11 applicant’s or witness’s written and oral statements . . . ,
12 the internal consistency of each such statement, [and] the
13 consistency of such statements with other evidence of record
14 . . . without regard to whether an inconsistency, inaccuracy,
15 or falsehood goes to the heart of the applicant’s claim, or
16 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
17 “We defer . . . to an IJ’s credibility determination unless,
18 from the totality of the circumstances, it is plain that no
19 reasonable fact-finder could make such an adverse credibility
20 ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.
21 2008); accord Hong Fei Gao, 891 F.3d at 76.
3 1 The agency appropriately relied on inconsistencies and
2 an omission relating to whether the police continued to look
3 for Liu in China. See 8 U.S.C. § 1158(b)(1)(B)(iii); Likai
4 Gao v. Barr, 968 F.3d 137, 145 n.8 (2d Cir. 2020) (“[E]ven a
5 single inconsistency might preclude an alien from showing
6 that an IJ was compelled to find him credible. Multiple
7 inconsistencies would so preclude even more forcefully.”).
8 Liu wrote that the police returned to his parents’ home on
9 several occasions after he left China, threatening his
10 parents that he would be “arrested and detained for ten years”
11 and “punished severely” if he did not return and report to
12 them. He similarly testified that he would be detained for
13 at least ten years if he returned. However, on cross-
14 examination, he testified that he would visit his parents in
15 China if the IJ granted him asylum, and expressed uncertainty
16 about whether police had any active interest in him. The IJ
17 correctly found that these responses “undermine[d] both the
18 subjective fear and the objective fear” central to Liu’s
19 asylum application, which was based on fear of being harmed
20 by police who were actively looking for him. Certified
21 Administrative Record at 74. Although voluntary return trips
4 1 to one’s home country are not necessarily evidence of a lack
2 of credibility, the agency reasonably relied on Liu’s
3 statement because it undermined his allegation that he would
4 be arrested if he returned—an allegation qualified only by
5 Liu’s statement on cross-examination that he would want to
6 know if it was safe for him to return and whether the police
7 were still looking for him. Id.; see Kone v. Holder, 596
8 F.3d 141, 150–51 (2d Cir. 2010). Moreover, a 2018 letter
9 from Liu’s mother did not mention police visits or threats
10 after Liu arrived in the United States in 2016. See Xiu Xia
11 Lin, 534 F.3d at 167 (permitting consideration of
12 discrepancies between the petitioner’s testimony and letters
13 from third parties); see also Hong Fei Gao, 891 F.3d at 78–
14 79, 81 (cautioning against reliance on omissions in third-
15 party statements but holding that the probative value of an
16 omission depends on whether the omitted facts are ones that
17 an applicant or witness “would reasonably have been expected
18 to disclose under the relevant circumstances”). Liu’s
19 explanation that his mother did not refer to those incidents
20 in her letter because she told him about them previously was
21 not compelling because the letter was addressed to the IJ and
5 1 submitted to support the asylum claim. See Majidi v.
2 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
3 do more than offer a plausible explanation for his
4 inconsistent statements to secure relief; he must demonstrate
5 that a reasonable fact-finder would be compelled to credit
6 his testimony.” (quotation marks omitted)).
7 The agency also reasonably relied on Liu’s demeanor. See
8 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi, 430 F.3d at 81 n.1
9 (“[a] fact-finder who assesses testimony together with
10 witness demeanor is in the best position to discern . . .
11 whether a witness who hesitated in a response was nevertheless
12 attempting truthfully to recount what he recalled of key
13 events” (quotation marks omitted)); Li Hua Lin v. U.S. Dep’t
14 of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (“We can be . .
15 . more confident in our review of observations about an
16 applicant’s demeanor where . . . they are supported by
17 specific examples of inconsistent testimony.”). Contrary to
18 Liu’s argument that the IJ did not give specific examples to
19 support the demeanor finding, the IJ (1) found that Liu’s
20 demeanor was “flat,” and that his testimony did not ring true
21 because it was delivered in a “rehearsed sounding manner” at
6 1 a “mechanical, very quick pace” even when describing past
2 events that had allegedly caused him to cry and tremble, and
3 (2) explained that Liu’s testimony appeared “highly
4 memorized, conveyed with only enough detail to meet the four
5 corners of his application.” Liu contends that he gave
6 succinct answers due to his limited education, but he fails
7 to explain how a limited education would cause him to testify
8 in a manner the IJ found flat and rehearsed. Given the
9 demeanor finding, inconsistencies, and omissions, substantial
10 evidence supports the adverse credibility determination. See
11 Hong Fei Gao, 891 F.3d at 76; Xiu Xia Lin, 534 F.3d at 165–
12 66.
13 Nor did the agency err in concluding that Liu did not
14 otherwise meet his burden of proof with reliable
15 corroborating evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii)
16 (“The testimony of the applicant may be sufficient to sustain
17 the applicant’s burden without corroboration, but only if the
18 applicant satisfies the trier of fact that the applicant’s
19 testimony is credible, is persuasive, and refers to specific
20 facts sufficient to demonstrate that the applicant is a
21 refugee.”); see Wei Sun v. Sessions, 883 F.3d 23, 28 (2d Cir.
7 1 2018). “Where the trier of fact determines that the
2 applicant should provide evidence that corroborates otherwise
3 credible testimony, such evidence must be provided unless the
4 applicant does not have the evidence and cannot reasonably
5 obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). Given
6 the credibility concerns discussed above, the agency
7 reasonably found that Liu’s testimony alone was
8 insufficiently persuasive to satisfy his burden of proof
9 without certain reasonably available corroborating evidence.
10 Id.; Wei Sun, 883 F.3d at 28. The agency did not err in
11 finding that Liu’s supporting evidence was insufficient to
12 rehabilitate his credibility or that evidence from an
13 uninterested witness regarding his church attendance was
14 reasonably available. See Biao Yang v. Gonzales, 496 F.3d
15 268, 273 (2d Cir. 2007) (“An applicant’s failure to
16 corroborate his or her testimony may bear on credibility,
17 because the absence of corroboration in general makes an
18 applicant unable to rehabilitate testimony that has already
19 been called into question.”). Liu provided letters from his
20 mother and a friend in China to corroborate his account of
21 past harm, and testimony from his sister, a letter from his
8 1 pastor, a baptismal certificate, and photographs to
2 corroborate his practice of Christianity in the United
3 States. The IJ reasonably gave diminished weight to the
4 letters and testimony from Liu’s family and friend because
5 they were from interested witnesses. The IJ also reasonably
6 found the sister’s testimony unpersuasive because she had
7 direct knowledge of Liu attending church on only one occasion.
8 See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013)
9 (deferring to agency decision to afford little weight to
10 petitioner’s husband’s letter because it was unsworn and from
11 an interested witness). Although Liu presented documentary
12 evidence regarding his religious practice, the IJ did not err
13 in finding that someone from his church could have testified.
14 Liu’s testimony that the people he asked did not have legal
15 status and the pastor was busy did not demonstrate that a
16 witness was unavailable. See 8 U.S.C. § 1252(b)(4) (“No
17 court shall reverse a determination made by a trier of fact
18 with respect to the availability of corroborating evidence .
19 . . unless . . . a reasonable trier of fact is compelled to
20 conclude that such corroborating evidence is unavailable.”);
21 Wei Sun, 883 F.3d at 30–31.
9 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 7