Tian Shun Liu v. Holder , 468 F. App'x 73 ( 2012 )

10-1228-ag
Liu v. Holder
BIA
Elstein, IJ
A094 046 331
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
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ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 13th day of April, two thousand twelve.
PRESENT:
RALPH K. WINTER,
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
______________________________________
TIAN SHUN LIU,
Petitioner,
v. 10-1228-ag
NAC
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Tian Shun Liu, pro se, Flushing,
N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Michelle Gorden Latour,
Assistant Director; Kimberly A.
Burdge, Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Tian Shun Liu, a native and citizen of China, seeks
review of a March 8, 2010, order of the BIA affirming the
May 2, 2008, decision of Immigration Judge (“IJ”) Annette S.
Elstein, which denied Liu’s application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Tian Shun Liu, No. A094 046
331 (B.I.A. Mar. 8, 2010), aff’g No. A094 046 331 (Immig.
Ct. N.Y. City May 2, 2008). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we have
considered both the IJ’s and the BIA’s opinions “for the
sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
(2d Cir. 2008). The applicable standards of review are
well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). For asylum
applications, such as Liu’s, governed by the REAL ID Act,
the agency may, considering the totality of the
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circumstances, base a credibility finding on an applicant’s
demeanor, the plausibility of his account, or
inconsistencies in his statements, without regard to whether
they go “to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii).
Contrary to Liu’s position, substantial evidence
supports the agency’s adverse credibility determination.
The IJ reasonably relied on a number of inconsistencies
within Liu’s testimony and between Liu’s testimony and the
statement he submitted with his asylum application in
finding him not credible. For example, Liu testified that
his wife’s contraceptive ring was removed in 1999, but his
asylum application stated that the removal of the device
occurred in 2003. Liu also testified inconsistently
regarding his wife’s second pregnancy, testifying that she
was pregnant with their second child in 2000, but listing a
2004 date in his application. Similarly, Liu testified that
his wife was subjected to a forced abortion in 2000, but his
application listed the abortion as occurring in 2004.
Although Liu contended that he had proof of his wife’s
abortion in the form of a “rest notice,” he gave conflicting
testimony concerning the date on which he first saw this
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notice, first stating that he saw the document in September
or June of 1994, and then changing his answer to June 14,
2000 when confronted with his testimony that the abortion
allegedly occurred in the year 2000. Additionally, as the
IJ noted, Liu’s assertion that he was arrested after arguing
with family planning officials was inconsistent with a
letter from his wife – submitted to corroborate his account
– which did not mention the arrest or argument.
Moreover, Liu’s argument that he was unaware that the
statement attached to his asylum application contained
errors is unavailing. Liu signed the application before
submitting it and again at his asylum interview. “The
applicant’s signature establishes a presumption that the
applicant is aware of the contents of the application.”
8 C.F.R. § 208.3(c)(2); see also Zhi Wei Pang v. Bureau of
Citizenship and Immigration Servs., 448 F.3d 102, 107-08 (2d
Cir. 2006). When asked by the IJ at the beginning of the
merits hearing if the signatures on the application were his
and if he knew, at the time, what he was signing, Liu
responded affirmatively and swore that everything in the
application was “true and correct.” Therefore, Liu failed
to rebut the presumption that he was aware of the contents
of the application.
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Because Liu’s claims were all based on the same factual
predicate, the agency’s adverse credibility determination
was a proper basis for the denial of asylum and withholding
of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
Cir. 2006). As for CAT relief, we lack jurisdiction to
consider the issue, as Liu failed to challenge the IJ’s
denial of this relief in his appeal to the BIA. 8 U.S.C.
§ 1252(d)(1); see also Karaj v. Gonzales, 462 F.3d 113, 119
(2d Cir. 2006) (citing Beharry v. Ashcroft, 329 F.3d 51, 59
(2d Cir. 2003)).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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