Liu v. Garland ( 2022 )

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 ,
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).
2
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
3
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
4
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
5
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).
6
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
7