Liu v. Sessions

• Court: Court of Appeals for the Second Circuit
• Decided: February 8, 2018
• Docket: 16-59
• Status: Unpublished

Opinion

16-59 Liu v. Sessions BIA Poczter, IJ A205 614 781 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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of February, two thousand eighteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, ROBERT D. SACK, RICHARD C. WESLEY, Circuit Judges. _____________________________________

JIA LIU, Petitioner,

v. 16-59 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Brian P. Fredericks, New York, NY.

FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy Assistant Attorney General; M. Jocelyn Lopez Wright, Senior Litigation Counsel; Anthony J. Messuri, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

DENIED.

Petitioner Jia Liu, a native and citizen of the People’s

Republic of China, seeks review of a December 9, 2015, decision

of the BIA affirming an April 8, 2014, decision of an Immigration

Judge (“IJ”) denying Liu’s application for asylum, withholding

of removal, and relief under the Convention Against Torture

(“CAT”). In re Jia Liu, No. A 205 614 781 (B.I.A. Dec. 9, 2015),

aff’g No. A 205 614 781 (Immig. Ct. N.Y. City Apr. 8, 2014). We

assume the parties’ familiarity with the underlying facts and

procedural history in this case.

We have reviewed the IJ’s decision as supplemented by the

BIA. See Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

The standards of review are well established. See 8 U.S.C.

§ 1252(b)(4); Weng v. Holder, 562 F.3d 510, 513-14 (2d Cir.

2009); Cao v. Gonzales, 421 F.3d 149, 156-57 (2d Cir. 2005).

The agency primarily denied relief on credibility grounds.

The agency may, “[c]onsidering the totality of the

circumstances,” base a credibility finding on “the consistency

between the applicant’s or witness’s written and oral

statements . . . , the internal consistency of each such

2 statement, the consistency of such statements with other

evidence of record . . . , and any inaccuracies or falsehoods

in such statements . . . .” 8 U.S.C. § 1158(b)(1)(B)(iii); Lin

v. Mukasey, 534 F.3d 162, 163-64 (2d Cir. 2008) (per curiam).

Here, the IJ’s adverse credibility determination is supported

by substantial evidence.

Liu’s omission of his alleged detention and beating from

his asylum application and direct examination testimony

provides sufficient support for the agency’s conclusion that

he was not credible. 8 U.S.C. § 1158(b)(1)(B)(iii); see Ye v.

Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (per

curiam) (concluding that a material inconsistency regarding an

aspect of a claim that serves as an example of the persecution

from which an applicant seeks asylum affords substantial

evidence in support of an adverse credibility finding); Lin,

534 F.3d at 166 n.3 (holding that, for purposes of analyzing

a credibility determination, “[a]n inconsistency and an

omission are . . . functionally equivalent”). Liu’s allegation

on cross-examination that he was hit with batons, detained, and

starved was his sole allegation of physical harm. Liu’s

written statement reported only that he was fired and threatened

with prosecution. The agency was not required to accept Liu’s

explanation that all threats were tantamount to being hit and

3 detained. Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)

(explaining that, on appeal, “[a] petitioner must do more than

offer a plausible explanation for his inconsistent statements

to secure relief; he must demonstrate that a reasonable

fact-finder would be compelled to credit his testimony.”

(internal quotation marks and citations omitted)). The IJ’s

adverse credibility determination is bolstered by Liu’s failure

to submit any corroborative evidence of his employment or his

detention and beating. See Yang v. Gonzales, 496 F.3d 268, 273

(2d Cir. 2007) (per curiam) (“An applicant’s failure to

corroborate his or her testimony may bear on credibility,

because the absence of corroboration in general makes an

applicant unable to rehabilitate testimony that has already

been called into question.”).

We find no error in the agency’s alternative conclusion

that Liu did not demonstrate an objectively reasonable fear of

future persecution in China on account of his religion. He did

not prove that Chinese officials were aware or would become

aware of his Christianity. See Leng v. Mukasey, 528 F.3d 135,

143 (2d Cir. 2008) (per curiam). In addition, record evidence

showed that millions of Christians in China practice in

unregistered churches and that in some areas, authorities did

not interfere with that practice. Moreover, the reports do not

4 reveal any incidents of detention or mistreatment of

underground church members or proselytizers in Liu’s home

province. See Shao v. Mukasey, 546 F.3d 138, 142, 149, 169-70

(2d Cir. 2008) (finding no error in BIA’s evidentiary framework

requiring applicant to demonstrate that similarly situated

individuals face persecution in his or her local area when

enforcement varies by region); Santoso v. Holder, 580 F.3d 110,

112 (2d Cir. 2009) (per curiam) (denying petition where agency

considered background materials and rejected pattern or

practice claim because violence was localized, not

countrywide).

Finally, the BIA did not abuse its discretion in denying

Liu’s motion to remand. Liu did not comply with the procedural

requirements for raising an ineffective assistance of counsel

claim. Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 47 (2d Cir.

2005) (requiring substantial compliance with the requirements

set forth in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988)).

For the foregoing reasons, the petition for review is

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk