16-3936 Liu v. Whitaker BIA Loprest, IJ A206 053 323 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 24th day of January, two thousand nineteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 JOSÉ A. CABRANES, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 PINGPING LIU, 14 Petitioner, 15 16 v. 16-3936 17 NAC 18 MATTHEW WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Theodore N. Cox, Esq., New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Derek C. Julius, 27 Assistant Director; Anthony O. 28 Pottinger, Trial Attorney, Office 29 of Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Pingping Liu, a native and citizen of the
6 People’s Republic of China, seeks review of a November 7,
7 2016, decision of the BIA affirming an April 14, 2016,
8 decision of an Immigration Judge (“IJ”) denying asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Pingping Liu, No. A206 053
11 323 (B.I.A. Nov. 7, 2016), aff’g No. A206 053 323 (Immig. Ct.
12 N.Y. City Apr. 14, 2016). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 both the IJ’s and the BIA’s opinions “for the sake of
16 completeness.” Wangchuck v. Dep’t of Homeland Security, 448
17 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
18 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
19 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
20 “Considering the totality of the circumstances, and all
21 relevant factors, a trier of fact may base a credibility
22 determination on the demeanor, candor, or responsiveness of
2 1 the applicant or witness, the inherent plausibility of the
2 applicant’s or witness’s account, the consistency between the
3 applicant’s or witness’s written and oral statements . . . ,
4 and the internal consistency of each such statement . . .
5 without regard to whether an inconsistency, inaccuracy, or
6 falsehood goes to the heart of the applicant’s claim.”
7 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d
8 at 163-64. Substantial evidence supports the agency’s
9 determination that Liu was not credible as to her claim that
10 family planning officials forcibly terminated her pregnancy.
11 The agency reasonably relied in part on Liu’s demeanor.
12 See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430
13 F.3d 77, 81 n.1 (2d Cir. 2005) (recognizing that particular
14 deference is given to the trier of fact’s assessment of
15 demeanor). That finding is supported by the record, which
16 reflects that Liu became hesitant and less responsive on
17 cross-examination thus giving the impression that she sought
18 time to formulate answers rather than testified from memory.
19 The demeanor finding and the overall credibility
20 determination are bolstered by record inconsistencies. See
21 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d
22 Cir. 2006). The agency reasonably found that Liu’s
3 1 testimony that she was hospitalized for three days and
2 homebound for one month after suffering a uterine infection
3 as a result of her abortion was inconsistent with
4 statements from her mother and husband who did not mention
5 that Liu was hospitalized or homebound despite describing
6 in detail her other post-abortion issues. See 8 U.S.C.
7 § 1158(b)(1)(B)(iii); see also Hong Fei Gao v. Sessions,
8 891 F.3d 67, 78 (2d Cir. 2018) (“[T]he probative value of a
9 witness’s . . . silence on particular facts depends on
10 whether those facts are ones the witness would reasonably
11 have been expected to disclose.”). The agency also
12 reasonably found that Liu changed her description of the
13 nature of her family planning violation from serious to
14 less serious depending on the nature of the questions posed
15 in an effort to bolster her claim. See 8 U.S.C.
16 § 1158(b)(1)(B)(iii).
17 There is no merit to Liu’s argument that the IJ failed
18 to make her sufficiently aware of the inconsistencies in the
19 record or the potential credibility issues in her case, given
20 that the Government questioned Liu about the different
21 descriptions of her post-abortion medical treatment and the
22 IJ repeatedly noted the Government’s issues with her
4 1 credibility. Further, she has not proffered any explanations
2 for the record inconsistencies. See Majidi, 430 F.3d at 80
3 (“A petitioner must do more than offer a plausible explanation
4 for his inconsistent statements to secure relief; he must
5 demonstrate that a reasonable fact-finder would be compelled
6 to credit his testimony.” (internal quotation marks
7 omitted)).
8 The agency also reasonably found Liu’s credibility as to
9 the involuntary nature of her abortion undermined by her
10 submission of an abortion certificate and a family planning
11 decision ordering her punished with an abortion and fine. We
12 have held that the agency does not err in determining that
13 the submission of an “abortion certificate” from China
14 undermines credibility about an assertedly involuntary
15 abortion because the State Department has reported that China
16 issues “abortion certificates” for voluntary abortions, not
17 forced abortions, so that the individuals who have undergone
18 voluntary abortions may obtain leave from work. See Xiao
19 Xing Ni v. Gonzales, 494 F.3d 260, 263 (2d Cir. 2007); Tu Lin
20 v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006). Similarly,
21 given that country conditions evidence in the record suggests
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16-3936 Liu v. Whitaker BIA Loprest, IJ A206 053 323 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 24th day of January, two thousand nineteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 JOSÉ A. CABRANES, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 PINGPING LIU, 14 Petitioner, 15 16 v. 16-3936 17 NAC 18 MATTHEW WHITAKER, ACTING 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Theodore N. Cox, Esq., New York, NY. 24 25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 26 Attorney General; Derek C. Julius, 27 Assistant Director; Anthony O. 28 Pottinger, Trial Attorney, Office 29 of Immigration Litigation, United 30 States Department of Justice, 31 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Pingping Liu, a native and citizen of the
6 People’s Republic of China, seeks review of a November 7,
7 2016, decision of the BIA affirming an April 14, 2016,
8 decision of an Immigration Judge (“IJ”) denying asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Pingping Liu, No. A206 053
11 323 (B.I.A. Nov. 7, 2016), aff’g No. A206 053 323 (Immig. Ct.
12 N.Y. City Apr. 14, 2016). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed
15 both the IJ’s and the BIA’s opinions “for the sake of
16 completeness.” Wangchuck v. Dep’t of Homeland Security, 448
17 F.3d 524, 528 (2d Cir. 2006). The applicable standards of
18 review are well established. See 8 U.S.C. § 1252(b)(4)(B);
19 Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
20 “Considering the totality of the circumstances, and all
21 relevant factors, a trier of fact may base a credibility
22 determination on the demeanor, candor, or responsiveness of
2 1 the applicant or witness, the inherent plausibility of the
2 applicant’s or witness’s account, the consistency between the
3 applicant’s or witness’s written and oral statements . . . ,
4 and the internal consistency of each such statement . . .
5 without regard to whether an inconsistency, inaccuracy, or
6 falsehood goes to the heart of the applicant’s claim.”
7 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d
8 at 163-64. Substantial evidence supports the agency’s
9 determination that Liu was not credible as to her claim that
10 family planning officials forcibly terminated her pregnancy.
11 The agency reasonably relied in part on Liu’s demeanor.
12 See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430
13 F.3d 77, 81 n.1 (2d Cir. 2005) (recognizing that particular
14 deference is given to the trier of fact’s assessment of
15 demeanor). That finding is supported by the record, which
16 reflects that Liu became hesitant and less responsive on
17 cross-examination thus giving the impression that she sought
18 time to formulate answers rather than testified from memory.
19 The demeanor finding and the overall credibility
20 determination are bolstered by record inconsistencies. See
21 Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d
22 Cir. 2006). The agency reasonably found that Liu’s
3 1 testimony that she was hospitalized for three days and
2 homebound for one month after suffering a uterine infection
3 as a result of her abortion was inconsistent with
4 statements from her mother and husband who did not mention
5 that Liu was hospitalized or homebound despite describing
6 in detail her other post-abortion issues. See 8 U.S.C.
7 § 1158(b)(1)(B)(iii); see also Hong Fei Gao v. Sessions,
8 891 F.3d 67, 78 (2d Cir. 2018) (“[T]he probative value of a
9 witness’s . . . silence on particular facts depends on
10 whether those facts are ones the witness would reasonably
11 have been expected to disclose.”). The agency also
12 reasonably found that Liu changed her description of the
13 nature of her family planning violation from serious to
14 less serious depending on the nature of the questions posed
15 in an effort to bolster her claim. See 8 U.S.C.
16 § 1158(b)(1)(B)(iii).
17 There is no merit to Liu’s argument that the IJ failed
18 to make her sufficiently aware of the inconsistencies in the
19 record or the potential credibility issues in her case, given
20 that the Government questioned Liu about the different
21 descriptions of her post-abortion medical treatment and the
22 IJ repeatedly noted the Government’s issues with her
4 1 credibility. Further, she has not proffered any explanations
2 for the record inconsistencies. See Majidi, 430 F.3d at 80
3 (“A petitioner must do more than offer a plausible explanation
4 for his inconsistent statements to secure relief; he must
5 demonstrate that a reasonable fact-finder would be compelled
6 to credit his testimony.” (internal quotation marks
7 omitted)).
8 The agency also reasonably found Liu’s credibility as to
9 the involuntary nature of her abortion undermined by her
10 submission of an abortion certificate and a family planning
11 decision ordering her punished with an abortion and fine. We
12 have held that the agency does not err in determining that
13 the submission of an “abortion certificate” from China
14 undermines credibility about an assertedly involuntary
15 abortion because the State Department has reported that China
16 issues “abortion certificates” for voluntary abortions, not
17 forced abortions, so that the individuals who have undergone
18 voluntary abortions may obtain leave from work. See Xiao
19 Xing Ni v. Gonzales, 494 F.3d 260, 263 (2d Cir. 2007); Tu Lin
20 v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006). Similarly,
21 given that country conditions evidence in the record suggests
22 that the use of force is prohibited under the family planning
5 1 policy and that government officials deny using involuntary
2 abortions as a punishment under the policy, the agency did
3 not err in finding it implausible that the Chinese government
4 would issue a decision ordering Liu punished with an abortion.
5 Her submission of such a document therefore impugned her
6 credibility. See Wensheng Yan v. Mukasey, 509 F.3d 63, 66-
7 68 (2d Cir. 2007) (recognizing that adverse credibility
8 determination may be based on inherent implausibility in
9 applicant’s story if the “finding is tethered to record
10 evidence” or based on common sense).
11 Having questioned Liu’s credibility, the agency
12 reasonably relied further on her failure to rehabilitate
13 her testimony with reliable corroborating evidence. “An
14 applicant’s failure to corroborate . . . her testimony may
15 bear on credibility, because the absence of corroboration
16 in general makes an applicant unable to rehabilitate
17 testimony that has already been called into question.”
18 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
19 The IJ reasonably declined to afford weight to the unsworn
20 letter from Liu’s mother in China. See Y.C. v. Holder, 741
21 F.3d 324, 334 (2d Cir. 2013) (deferring to agency’s
22 decision to afford little weight to husband’s letter
6 1 because it was unsworn and from an interested witness).
2 And, as discussed above, Liu’s abortion certificate and
3 punishment decision impugned rather than rehabilitated her
4 claim of an involuntary abortion. Although the parties
5 stipulated that Liu’s husband would testify in conformity
6 with his affidavit and letter, the agency was not compelled
7 to conclude that his statements alone would be sufficient
8 to rehabilitate Liu’s claim that she was forced to have an
9 abortion given that he was not a first-hand witness and, as
10 discussed above, his letter omitted that Liu was
11 hospitalized and homebound from a post-abortion infection.
12 See Biao Yang, 496 F.3d at 273.
13 Given the demeanor, inconsistency, implausibility, and
14 corroboration findings, the agency’s adverse credibility
15 determination is supported by substantial evidence and is
16 dispositive of asylum, withholding of removal, and CAT
17 relief.* See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d
18 Cir. 2006).
* Contrary to the BIA’s conclusion, Liu did not waive his claims for withholding of removal and CAT relief. The IJ denied those claims because Liu failed to testify credibly; thus Liu’s challenge to the adverse credibility determination on appeal to the BIA necessarily included a challenge to the denial of withholding and CAT relief. 7 1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of removal
3 that the Court previously granted in this petition is VACATED,
4 and any pending motion for a stay of removal in this petition
5 is DISMISSED as moot. Any pending request for oral argument
6 in this petition is DENIED in accordance with Federal Rule of
7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
8 34.1(b).
9 FOR THE COURT: 10 Catherine O’Hagan Wolfe 11 Clerk of Court