Liang v. Lynch , 615 F. App'x 8 ( 2015 )

14-1050
Liang v. Lynch
BIA
Nelson, IJ
A087 794 036
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 1st day of July, two thousand fifteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 REENA RAGGI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 LI QIANG LIANG, AKA LIQIANG LIANG,
14 Petitioner,
15
16 v. 14-1050
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Lee Ratner, New York, New York.
25
26 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
27 Attorney General; Mary Jane Candaux,
1 Assistant Director; Jeremy M.
2 Bylund, Trial Attorney, Office of
3 Immigration Litigation, U.S.
4 Department of Justice, Washington,
5 D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review is
10 DENIED.
11 Petitioner Li Qiang Liang, a native and citizen of the
12 People’s Republic of China, seeks review of a March 21, 2014
13 decision of the BIA affirming a June 21, 2012 decision of an
14 Immigration Judge (“IJ”), denying Liang’s application for
15 asylum, withholding of removal, and relief under the Convention
16 Against Torture (“CAT”). In re Li Qiang Liang, No. A087 794
17 036 (B.I.A. Mar. 21, 2014), aff’g No. A087 794 036 (Immig. Ct.
18 N.Y. City June 21, 2012). We assume the parties’ familiarity
19 with the underlying facts and procedural history in this case.
20 Under the circumstances of this case, we have reviewed the
21 IJ’s decision as modified by the BIA, i.e., minus the basis for
22 denying relief that was not considered by the BIA (untimely
23 asylum application). Xue Hong Yang v. U.S. Dep’t of Justice,
2
1 426 F.3d 520, 522 (2d Cir. 2005). Furthermore, we do not review
2 the agency’s determination that Liang failed to satisfy his
3 burden to demonstrate a well-founded fear of persecution on
4 account of his practice of Falun Gong in the United States
5 because he has not challenged the agency’s decision to that
6 extent. Accordingly, the only issue before us is the adverse
7 credibility determination. The applicable standards of review
8 are well established. 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
9 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
10 The agency may, “[c]onsidering the totality of the
11 circumstances,” base a credibility finding on an asylum
12 applicant’s demeanor, the plausibility of his account, and
13 inconsistencies in his statements and other record evidence
14 “without regard to whether” they go “to the heart of the
15 applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia
16 Lin, 534 F.3d at 163-64. Substantial evidence supports the
17 agency’s determination that Liang was not credible based
18 primarily on the implausibility of his account.
19 “It is well settled that, in assessing the credibility of
20 an asylum applicant’s testimony, an IJ is entitled to consider
3
1 whether the applicant’s story is inherently implausible.”
2 Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007). When,
3 as here, “an adverse credibility finding is based partly or
4 entirely on implausibility, [the court] review[s] the entire
5 record, not whether each unusual or implausible feature of the
6 account can be explained or rationalized.” Ying Li v. BCIS,
7 529 F.3d 79, 82 (2d Cir. 2008).
8 In Ying Li, we declined to disturb an IJ’s determination
9 that an asylum applicant’s account was implausible because
10 “[t]he picture that emerge[d] [wa]s of a student who promoted
11 Falun Gong among her classmates (but did not practice it), who
12 was harassed by local officials (alone among her family), who
13 met with a Falun Gong practitioner repeatedly and openly
14 (although he was never arrested), and who successfully quit the
15 country using her own passport (despite allegations of
16 nationwide persecution).” Id. at 83. Similar to the
17 petitioner in Ying Li, Liang presented an account that permitted
18 “an inference of fabrication.” Id.; Siewe v. Gonzales, 480
19 F.3d 160, 168-69 (2d Cir. 2007) (providing that an
20 implausibility finding that is based on “speculation that
4
1 inheres in inference is not ‘bald’ if the inference is made
2 available to the factfinder by record facts, or even a single
3 fact, viewed in the light of common sense and ordinary
4 experience.”).
5 The IJ identified the following implausible aspects of
6 Liang’s account. Liang was detained and beaten when officials
7 discovered that his aunt’s neighbor (a Falun Gong practitioner)
8 had hidden at Liang’s parents’ house, but Liang’s parents were
9 neither questioned nor detained. Four years later, Liang (who
10 did not practice Falun Gong in China) risked arrest by
11 distributing Falun Gong materials for a friend. Once caught,
12 Liang’s parents helped him escape detention. And, although
13 officials knew of his parents’ involvement in his escape, they
14 never questioned or detained his parents. Liang did not seek
15 medical treatment for injuries sustained when he was beaten in
16 detention, but he did seek medical treatment for a cold while
17 a fugitive. The record from this medical visit was Liang’s
18 proof that he timely applied for asylum within one year of his
19 entry to the United States. Liang did not provide compelling
5
1 explanations for the implausibility of his account. See Majidi
2 v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).
3 The adverse credibility determination was further
4 supported by Liang’s evasive demeanor and inconsistent
5 statements regarding whether he sought medical attention after
6 his detentions. See Xiu Xia Lin, 534 F.3d at 165-66; cf. Li
7 Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006)
8 (“We can be still more confident in our review of observations
9 about an applicant’s demeanor where, as here, they are supported
10 by specific examples of inconsistent testimony.”). The agency
11 also reasonably relied on Liang’s failure to provide credible
12 evidence to rehabilitate his testimony. See Biao Yang v.
13 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).
14 Given the implausibility, demeanor, inconsistency, and
15 corroboration findings, the agency’s adverse credibility
16 determination is supported by substantial evidence. See
17 8 U.S.C. § 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F.3d 148,
18 156-57 (2d Cir. 2006). That finding is dispositive of Liang’s
19 claims for asylum, withholding of removal, and CAT relief
20 insofar as they were based on his activities in China.
6
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, Clerk
7