Liu v. Lynch , 674 F. App'x 76 ( 2017 )

15-2301
Liu v. Lynch
BIA
Sichel, IJ
A088 827 636
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 9th day of January, two thousand seventeen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 YIPING LIU, AKA YI PING LIU,
14 Petitioner,
15
16 v. 15-2301
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael A. O. Brown, Law Offices of
24 Michael Brown, PC, New York, N.Y.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Anthony
28 P. Nicastro, Acting Assistant
29 Director; Sabatino F. Leo, Trial
30 Attorney, Office of Immigration
31 Litigation, U.S. Department of
32 Justice, Washington, D.C.
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 is
4 DISMISSED IN PART and DENIED IN PART.
5 Petitioner Yiping Liu, a native and citizen of China, seeks
6 review of a June 23, 2015 decision of the BIA affirming a March
7 21, 2014 decision of an Immigration Judge (“IJ”), denying Liu’s
8 application for asylum, withholding of removal, and relief
9 under the Convention Against Torture (“CAT”). In re Yiping
10 Liu, No. A088 827 636 (B.I.A. June 23, 2015), aff’g No. A088
11 827 636 (Immig. Ct. N.Y. City Mar. 21, 2014). We assume the
12 parties’ familiarity with the underlying facts and procedural
13 history in this case.
14 We have reviewed both the IJ’s and BIA’s decisions.
15 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005). The
16 applicable standards of review are well established. 8 U.S.C.
17 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
18 (2d Cir. 2008).
19 I. Asylum
20 We dismiss as untimely Liu’s petition relating to the
21 agency’s pretermission of his asylum application. An asylum
22 application must be filed within one year of an applicant’s
23 arrival in the United States, absent changed or extraordinary
2
1 circumstances. 8 U.S.C. § 1158(a)(2)(B), (D). We lack
2 jurisdiction to review a denial of asylum on timeliness grounds.
3 8 U.S.C. § 1158(a)(3). Although we retain jurisdiction to
4 review “constitutional claims or questions of law,” 8 U.S.C.
5 § 1252(a)(2)(D), Liu’s argument that the agency erred by
6 finding that he did not establish extraordinary circumstances
7 does not present a reviewable claim or question, see
8 Joaquin-Porras v. Gonzales, 435 F.3d 172, 180 (2d Cir. 2006).
9 II. Credibility
10 For applications governed by the REAL ID Act, like Liu’s,
11 the agency may, considering the totality of the circumstances,
12 base a credibility finding on an applicant’s demeanor, the
13 plausibility of his account, and inconsistencies in his
14 statements and other record evidence without regard to whether
15 they go “to the heart of the applicant’s claim.” 8 U.S.C.
16 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. We
17 defer to an IJ’s credibility determination “unless . . . it is
18 plain that no reasonable fact-finder could make such an adverse
19 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. Further,
20 “[a] petitioner must do more than offer a plausible explanation
21 for his inconsistent statements to secure relief; he must
22 demonstrate that a reasonable fact-finder would be compelled
23 to credit his testimony.” Majidi v. Gonzales, 430 F.3d 77, 80
3
1 (2d Cir. 2005) (quotation marks omitted). Here, substantial
2 evidence supports the agency’s adverse credibility
3 determination.
4 First, the agency reasonably relied on inconsistencies
5 between Liu’s application and testimony about how he
6 distributed Falun Gong fliers. See Xiu Xia Lin, 534 F.3d at
7 163-64. Liu stated in his application and testified on direct
8 that he disguised the Falun Gong fliers with advertisements and
9 put them into mailboxes in the middle of the night. However,
10 Liu testified on cross-examination that he did not disguise the
11 fliers with advertisements. The IJ was not compelled to accept
12 Liu’s explanation that he had perhaps misunderstood the
13 question. Majidi, 430 F.3d at 80.
14 Second, the agency reasonably relied on inconsistencies
15 between Liu’s application and testimony concerning the timeline
16 for his release from detention and escape from China. See Xiu
17 Xia Lin, 534 F.3d at 163-64. Liu stated in his application that
18 he was detained for five days following his February 2000
19 arrest, went into hiding soon after his release, left China on
20 March 29, 2000, and arrived in the United States on September
21 23, 2000. However, Liu testified on both direct and
22 cross-examination that he went into hiding on September 20 or
23 22, 2000 and arrived in the United States on September 23, 2000.
4
1 Liu was asked how he could have gone into hiding on September
2 22, but arrived in the United States the next day; Liu paused
3 and then responded that he left China on March 29, 2000. He
4 also stated at various points that he went into hiding on
5 February 20, February 22, and March 20, 2000. The IJ was not
6 compelled to accept Liu’s explanations, which only created
7 additional inconsistencies. See Majidi, 430 F.3d at 80.
8 Third, the agency reasonably relied on Liu’s father’s
9 inconsistent testimony. See Xiu Xia Lin, 534 F.3d at 163-64.
10 Liu’s father initially testified that Liu did not get into any
11 trouble in China; he was immediately asked that same question
12 again, however, and testified that Liu had been arrested. The
13 IJ was entitled to reject Liu’s father’s explanation that he
14 was nervous and forgot about Liu’s arrest. Majidi, 430 F.3d
15 at 80.
16 Fourth, the agency reasonably relied on the implausibility
17 of certain aspects of Liu’s claimed Falun Gong activities in
18 China. See Xiu Xia Lin, 534 F.3d at 167-68. The agency found
19 implausible Liu’s claims that he learned but did not practice
20 Falun Gong in China because he was afraid of getting caught after
21 the government’s 1999 crackdown, and that he felt comfortable
22 distributing fliers only because he was a minor. That finding
23 is reasonably supported by the entire record. See Ying Li v.
5
1 Bureau of Citizenship & Immigration Servs., 529 F.3d 79, 82 (2d
2 Cir. 2008).
3 In short, the agency’s adverse credibility determination
4 is supported by substantial evidence. See 8 U.S.C. §
5 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. That
6 determination is dispositive of Liu’s claims for withholding
7 of removal and CAT relief because those claims are based on the
8 same factual predicate. See Paul v. Gonzales, 444 F.3d 148,
9 156-57 (2d Cir. 2006).
10 For the foregoing reasons, the petition for review is
11 DISMISSED IN PART and DENIED IN PART. As we have completed our
12 review, any stay of removal that the Court previously granted
13 in this petition is VACATED, and any pending motion for a stay
14 of removal in this petition is DENIED as moot. Any pending
15 request for oral argument in this petition is DENIED in
16 accordance with Federal Rule of Appellate Procedure 34(a)(2),
17 and Second Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O=Hagan Wolfe, Clerk
6