Liu v. Barr ( 2020 )

18-1902
Liu v. Barr
BIA
Vomacka, IJ
A210 170 439
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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 2nd day of January, two thousand twenty.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 YUPING LIU,
14 Petitioner,
15
16 v. 18-1902
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Raymond Lo, Esq., Jersey City,
24 NJ.
25
26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
27 General; Terri J. Scadron,
28 Assistant Director; Leslie McKay,
1 Senior Litigation Counsel, Office
2 of Immigration Litigation, United
3 States Department of Justice,
4 Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Yuping Liu, a native and citizen of the
10 People’s Republic of China, seeks review of a June 15, 2018,
11 decision of the BIA affirming a June 22, 2017, decision of an
12 Immigration Judge (“IJ”) denying Liu’s application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Yuping Liu, No. A
15 210 170 439 (B.I.A. Jun. 15, 2018), aff’g No. A 210 170 439
16 (Immig. Ct. N.Y. City Jun. 22, 2017). We assume the parties’
17 familiarity with the underlying facts and procedural history
18 in this case.
19 We have reviewed the BIA and IJ’s decisions “for the sake
20 of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
21 F.3d 524, 528 (2d Cir. 2006). We review the adverse
22 credibility determination for substantial evidence. See 8
23 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
24 67, 76 (2d Cir. 2018). “Considering the totality of the
2
1 circumstances, and all relevant factors, a trier of fact may
2 base a credibility determination on the demeanor, candor, or
3 responsiveness of the applicant . . . , the inherent
4 plausibility of the applicant’s . . . account, the consistency
5 between the applicant’s . . . written and oral statements .
6 . . , the internal consistency of each such statement, [and]
7 the consistency of such statements with other evidence of
8 record . . . without regard to whether an inconsistency,
9 inaccuracy, or falsehood goes to the heart of the applicant’s
10 claim, or any other relevant factor.” 8 U.S.C.
11 § 1158(b)(1)(B)(iii). “We defer . . . to an IJ’s credibility
12 determination unless, from the totality of the circumstances,
13 it is plain that no reasonable fact-finder could make such an
14 adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534
15 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d
16 at 76. Substantial evidence supports the agency’s
17 determination that Liu was not credible as to her claim that
18 she was persecuted by Chinese authorities on account of her
19 Falun Gong practice.
20 The agency reasonably relied on an inconsistency between
21 Liu’s testimony, asylum interview, and personal statement
22 about the number of times she was beaten by Chinese
3
1 authorities. See 8 U.S.C. § 1158(b)(1)(B)(iii). In her
2 application and at her asylum interview, she described being
3 beaten when she was first detained and interrogated, but she
4 did not mention other beatings. Moreover, despite being
5 asked at the interview to provide more details about her
6 detention, she added only that she was interrogated on the
7 ensuing days, not that she was beaten. In contrast, she
8 testified that she was beaten three times per day, each day
9 of her detention. This inconsistency, alone, is substantial
10 evidence for the adverse credibility determination because it
11 concerns the sole incident of past persecution that is the
12 heart of her claim. See Xian Tuan Ye v. Dep’t of Homeland
13 Sec., 446 F.3d 289, 295 (2d Cir. 2006) (a material
14 inconsistency regarding the basis of an applicant’s asylum
15 claim is substantial evidence of adverse credibility).
16 The agency bolstered the adverse credibility
17 determination by pointing to a series of other
18 inconsistencies and implausible testimony. Liu has abandoned
19 any challenge to these grounds because she did not provide
20 any specific argument before the BIA or this Court. See
21 Shunfu Li v. Mukasey, 529 F.3d 141, 146–47 (2d Cir. 2008)
22 (explaining that waiver of specific credibility findings can
4
1 be “significant” where “findings could, by themselves,
2 support an adverse credibility determination.”). Nor did Liu
3 sufficiently challenge the agency’s corroboration findings,
4 as she does not identify any specific evidence that the IJ
5 should have credited or explain why other evidence was
6 unavailable. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
7 545 n.7 (2d Cir. 2005) (holding that party’s “single
8 conclusory sentence” of argument on claim was tantamount to
9 a waiver of that claim). Liu’s argument that the agency
10 ignored country conditions evidence concerning persecution of
11 Falun Gong practitioners is unsupported because the agency
12 acknowledged that Falun Gong practitioners are persecuted in
13 China and denied relief solely on credibility grounds.
14 Given Liu’s inconsistent descriptions of her alleged
15 persecution and her failure to challenge the other grounds
16 for the agency’s decision, the adverse credibility
17 determination is supported by substantial evidence. See
18 8 U.S.C. § 1158(b)(1)(B)(iii). The adverse credibility
19 determination is dispositive of asylum, withholding of
20 removal, and CAT relief because all three forms of relief are
21 based on the same factual predicate. See Paul v. Gonzales,
22 444 F.3d 148, 156-57 (2d Cir. 2006).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
6