Liu v. Whitaker
This text of Liu v. Whitaker (Liu v. Whitaker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
17-1291 Liu v. Whitaker BIA Gordon-Uruakpa, IJ A205 444 671 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 18th day of December, two thousand 5 eighteen. 6 7 PRESENT: 8 PIERRE N. LEVAL, 9 REENA RAGGI, 10 RAYMOND J. LOHIER, JR., 11 Circuit Judges. 12 _____________________________________ 13 14 WEN JIN LIU, 15 16 Petitioner, 17 18 v. 17-1291 19 NAC 20 21 MATTHEW G. WHITAKER, ACTING 22 UNITED STATES ATTORNEY GENERAL, 23 24 Respondent. 25 _____________________________________ 26 27 FOR PETITIONER: Wen Jin Liu, pro se, New York, 28 NY. 29 1 FOR RESPONDENT: Chad A. Readler, Acting Assistant 2 Attorney General; Holly M. Smith, 3 Senior Litigation Counsel; Jesse 4 Lloyd Busen, Trial Attorney, 5 Office of Immigration Litigation, 6 United States Department of 7 Justice, Washington, DC. 8 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 Petitioner Wen Jin Liu, a native and citizen of the
14 People’s Republic of China, seeks review of a March 29, 2017,
15 decision of the BIA affirming a March 10, 2016, decision of
16 an Immigration Judge (“IJ”) denying Liu’s application for
17 asylum, withholding of removal, and relief under the
18 Convention Against Torture (“CAT”). In re Wen Jin Liu, No.
19 A205 444 671 (B.I.A. Mar. 29, 2017), aff’g No. A205 444 671
20 (Immig. Ct. N.Y. City March 10, 2016). We assume the parties’
21 familiarity with the underlying facts and procedural history
22 in this case.
23 Under the circumstances of this case, we have reviewed
24 both the IJ’s and the BIA’s opinions “for the sake of
25 completeness.” Wangchuck v. Dep’t of Homeland Security, 448
26 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
2 1 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
2 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
3 “Considering the totality of the circumstances, and all
4 relevant factors, a trier of fact may base a credibility
5 determination on . . . the consistency between the applicant’s
6 or witness’s written and oral statements . . . , the internal
7 consistency of each such statement, [and] the consistency of
8 such statements with other evidence of record . . . without
9 regard to whether an inconsistency, inaccuracy, or falsehood
10 goes to the heart of the applicant’s claim.” 8 U.S.C.
11 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
12 Substantial evidence supports the agency’s determination that
13 Liu was not credible because he made numerous inconsistent
14 and changing statements about where he and his daughter lived
15 in the United States and he did not corroborate his residence
16 or his practice of Falun Gong, thereby calling into question
17 his veracity as to all aspects of his claims. See 8 U.S.C.
18 § 1158(b)(1)(B)(iii); Siewe v. Gonzales, 480 F.3d 160, 170
19 (2d Cir. 2007) (“So a single false document or a single
20 instance of false testimony may (if attributable to the
21 petitioner) infect the balance of the alien’s uncorroborated
22 or unauthenticated evidence.”).
3 1 “An applicant’s failure to corroborate his or her
2 testimony may bear on credibility, because the absence of
3 corroboration in general makes an applicant unable to
4 rehabilitate testimony that has already been called into
5 question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
6 2007). The IJ reasonably found that Liu failed to present
7 objective evidence that he lived in New York, and the record
8 contained evidence that he got married, had a child, paid
9 utilities, and sought credit in North Carolina during the
10 relevant time period.
11 With respect to his practice of Falun Gong, the IJ did
12 not err in declining to afford weight to unsworn letters from
13 Liu’s father and friend in China because the authors were
14 interested witness who were not available for cross-
15 examination. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir.
16 2013) (deferring to agency’s decision to afford little weight
17 to relative’s letter because it was unsworn and from an
18 interested witness); In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec.
19 209, 215 (BIA 2010) (finding that unsworn letters from alien’s
20 friends and family were insufficient to support asylum claim
21 because they were from interested witnesses not subject to
22 cross-examination), overruled on other grounds by Hui Lin
4 1 Huang v. Holder, 677 F.3d 130, 133-38 (2d Cir. 2012). The
2 IJ also did not err in declining to credit an unauthenticated
3 and handwritten “Notice” firing Liu but providing only
4 limited details. See Xiao Ji Chen v. U.S. Dep’t of Justice,
5 471 F.3d 315, 341-42 (2d Cir. 2006) (holding that
6 determination of the weight of evidence is largely matter of
7 agency discretion); cf. Jin Shui Qiu v. Ashcroft, 329 F.3d
8 140, 152 (2d Cir. 2003) (“Where an applicant gives very spare
9 testimony, . . . the IJ . . . may fairly wonder whether the
10 testimony is fabricated . . . [and] may wish to probe for
11 incidental details.”), overruled in part on other grounds by
12 Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d
13 Cir. 2007). And the IJ did not err in noting that although
14 Liu submitted photographs of himself attending Falun Gong
15 demonstrations, which even non-practitioners could attend,
16 Liu failed to submit any evidence corroborating his practice
17 of Falun Gong in the United States even though he testified
18 that he often practiced with other individuals.
19 Given the numerous inconsistencies and lack of reliable
20 corroboration, substantial evidence supports the agency’s
21 adverse credibility determination. See 8 U.S.C.
22 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. As
5 1 the agency concluded, Liu’s numerous inconsistent statements
2 and conflicting evidence about his and his daughter’s
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