Liu v. Garland ( 2022 )

21-6080
Liu v. Garland
BIA
Nelson, IJ
A201 117 960
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 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 22nd day of September, two thousand twenty-
5 two.
6
7 PRESENT:
8 GUIDO CALABRESI,
9 MICHAEL H. PARK,
10 ALISON J. NATHAN,
11 Circuit Judges.
12 _____________________________________
13
14 JINGQUAN LIU,
15 Petitioner,
16
17 v. 21-6080
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gary J. Yerman, Esq., New York,
25 NY.
26
27 FOR RESPONDENT: Brian Boynton, Acting Assistant
28 Attorney General; Mary Jane
1 Candaux, Assistant Director;
2 Nicole J. Thomas-Dorris, Trial
3 Attorney, Office of Immigration
4 Litigation, United States
5 Department of Justice, Washington,
6 DC.
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
10 is DENIED.
11 Petitioner Jingquan Liu, a native and citizen of the
12 People’s Republic of China, seeks review of a January 26,
13 2021, decision of the BIA affirming a November 14, 2018,
14 decision of an Immigration Judge (“IJ”) denying Liu’s
15 application for asylum, withholding of removal, and
16 protection under the Convention Against Torture (“CAT”). In
17 re Jingquan Liu, No. A201 117 960 (B.I.A. Jan. 26, 2021),
18 aff’g No. A201 117 960 (Immig. Ct. N.Y. City Nov. 14, 2018).
19 We assume the parties’ familiarity with the underlying facts
20 and procedural history.
21 We have reviewed both the IJ’s and BIA’s decisions “for
22 the sake of completeness.” Wangchuck v. Dep’t of Homeland
23 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
24 standards of review are well established. See 8 U.S.C.
2
1 § 1252(b)(4)(B) (“[T]he administrative findings of fact are
2 conclusive unless any reasonable adjudicator would be
3 compelled to conclude to the contrary . . . .”); Hong Fei Gao
4 v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018) (reviewing adverse
5 credibility determination under substantial evidence
6 standard).
7 “Considering the totality of the circumstances, and all
8 relevant factors, a trier of fact may base a credibility
9 determination on the demeanor, candor, or responsiveness of
10 the applicant . . . , the inherent plausibility of the
11 applicant’s . . . account, the consistency between the
12 applicant’s . . . written and oral statements . . . , the
13 internal consistency of each such statement, [and] the
14 consistency of such statements with other evidence of record
15 . . . without regard to whether an inconsistency, inaccuracy,
16 or falsehood goes to the heart of the applicant’s claim, or
17 any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii).
18 “We defer . . . to an IJ’s credibility determination
19 unless . . . it is plain that no reasonable fact-finder could
20 make such an adverse credibility ruling.” Xiu Xia Lin v.
21 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam); accord
3
1 Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports
2 the adverse credibility determination given the IJ’s demeanor
3 finding and issues with Liu’s corroborating evidence. See 8
4 U.S.C. § 1158(b)(1)(B)(iii).
5 The IJ is permitted to rely on demeanor in assessing
6 credibility. Id. We afford “particular deference” to the
7 IJ’s demeanor finding because the IJ is “in the best position
8 to evaluate whether . . . testimony suggest[s] a lack of
9 credibility or, rather, can be attributed to an innocent cause
10 such as difficulty understanding the question.” Lin v. U.S.
11 Dep’t of Justice, 453 F.3d 99, 109 (2d Cir. 2006) (quotation
12 marks omitted). We find no reason not to defer here as the
13 IJ explained that she had the impression Liu was testifying
14 from a script and displaying insincere emotion, and she issued
15 her decision at the close of the testimony. Id. (deferring
16 to IJ’s “impression that [petitioner] was not testifying from
17 actual experience” (quotation marks and brackets omitted));
18 cf. Su Chun Hu v. Holder, 579 F.3d 155, 158–59 (2d Cir. 2009)
19 (per curiam) (holding that same deference is not due to a
20 demeanor finding issued years after the testimony).
21 The IJ’s findings related to Liu’s corroboration also
4
1 support the adverse credibility determination. “An IJ is
2 fully entitled to make findings concerning the authenticity
3 of submitted evidence, based on her own examination and her
4 professional analysis. Such findings will ordinarily merit
5 deference.” Niang v. Mukasey, 511 F.3d 138, 146 (2d Cir.
6 2007). The IJ reasonably determined that the matching
7 pictures on Liu’s driver’s license and medical record, called
8 into question the authenticity of that evidence and Liu’s
9 overall credibility. See Zaman v. Mukasey, 514 F.3d 233, 239
10 (2d Cir. 2008) (per curiam) (upholding IJ’s conclusion that
11 document was fraudulent “based on the similarity between
12 . . . two photos” and IJ’s reliance on that “conclusion to
13 call into question the other aspects of . . . testimony”).
14 These concerns were compounded by Liu’s testimony that his
15 sister in Fujian Province mailed the documents to him, while
16 the envelope they came in included a return address in Taiwan.
17 The IJ did not err in concluding that these documents
18 undermined Liu’s credibility because the medical record was
19 material to Liu’s claim that he was injured while detained
20 for attending an underground church. Id.; see also Siewe v.
21 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] single false
5
1 document or a single instance of false testimony may
2 . . . infect the balance of the [applicant’s] uncorroborated
3 or unauthenticated evidence.”).
4 These findings provide substantial evidence in support
5 of the adverse credibility determination. See 8 U.S.C.
6 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167; Siewe,
7 480 F.3d at 170. The adverse credibility determination is
8 dispositive of asylum, withholding of removal, and CAT relief
9 because all three forms of relief are based on the same
10 discredited factual predicate. See Paul v. Gonzales, 444
11 F.3d 148, 156–57 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED. All pending motions and applications are DENIED and
14 stays VACATED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe,
17 Clerk of Court
18
6