Liu v. Holder , 549 F. App'x 50 ( 2014 )

12-2428
Liu v. Holder
BIA
Nelson, IJ
A089 009 167
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 8th day of January, two thousand fourteen.
PRESENT:
JOSÉ A. CABRANES,
PETER W. HALL,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
PING LIU,
Petitioner,
v. 12-2428
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Jie Han, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Russell J.E.
Verby, Senior Litigation Counsel;
John D. Williams, Trial 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.
Petitioner Ping Liu, a native and citizen of China,
seeks review of a May 17, 2012, order of the BIA, affirming
an August 5, 2010, decision of Immigration Judge (“IJ”)
Barbara A. Nelson, denying her application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Ping Liu, No. A089 009 167
(B.I.A. May 17, 2012), aff’g No. A089 009 167 (Immig. Ct.
N.Y. City Aug. 5, 2010). We assume the parties’ familiarity
with the underlying facts and procedural history in this
case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). 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 applications like this one, governed by
the REAL ID Act of 2005, the agency may, “[c]onsidering the
totality of the circumstances,” base a credibility finding
on an asylum applicant’s demeanor, the plausibility of her
account, and inconsistencies in her statements, without
regard to whether they go “to the heart of the applicant’s
claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Matter of J-Y-C-, 24
I. & N. Dec. 260, 265 (B.I.A. 2007). Analyzed under these
standards, the agency’s adverse credibility determination is
supported by substantial evidence.
In finding Liu not credible, the IJ reasonably relied
on the inconsistency between (a) Liu’s testimony that she
had informed a gynecologist she visited in the United States
that she had a past abortion and (b) the absence of this
information from that doctor’s medical records. See 8
U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534
F.3d 162, 167 (2d Cir. 2008). Although the doctor testified
that she did not remember whether Liu had told her about a
past abortion, she also testified that she would have
certainly written this information in Liu’s file if Liu had
told her. The agency was not compelled to accept Liu’s
argument that this omission was irrelevant because she was
only seeing the doctor to have her intrauterine device
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removed. The doctor’s testimony indicated that it was
relevant enough to Liu’s medical history to have been noted
in writing if Liu had mentioned it. See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005) (holding that an agency
need not credit an applicant’s explanations for
inconsistencies in the record unless those explanations
would compel a reasonable fact-finder to do so).
Additionally, the agency found that Liu’s claim that
she fled persecution in China was further undermined by the
fact that after Liu’s alleged forced abortion, she made a
trip to Thailand for pleasure, did not seek status there,
and voluntarily returned to China before procuring a visa to
the United States. Liu fails to challenge this
determination in any meaningful way. See Kone v. Holder,
596 F.3d 141, 150 (2d Cir. 2010) (finding that while
voluntary return trips on their own are an insufficient
basis for an adverse credibility finding, they “may be
relevant to credibility in the exercise of an IJ’s informed
discretion”); Yueqing Zhang v. Gonzales, 426 F.3d 540, 545
n.7 (2d Cir. 2005) (issues not sufficiently argued in
briefing are considered waived on appeal).
The BIA’s additional findings regarding Liu’s
corroboration of her claim, including the BIA’s discussion
of Liu’s medical certificate from China indicating a past
abortion and the evidentiary value of her husband’s letter,
constitute impermissible appellate fact-finding because the
IJ did not make findings regarding this evidence. See 8
C.F.R. § 1003.1(d)(3)(iv); Padmore v. Holder, 609 F.3d 62,
67-68 (2d Cir. 2010). We need not remand to correct these
errors, however, because the agency’s adverse credibility
finding constitutes a sufficient basis for the agency’s
denial of Liu’s applications for relief given that the
identified inconsistencies related to whether the sole
incident of persecution (the alleged abortion) had occurred
and because Liu’s credibility was further called into
question by her return to China after she had gone to
Thailand. See Xiu Xia Lin, 534 F.3d at 167 (holding that
this Court “defer[s] to an IJ’s credibility determination
unless, from the totality of the circumstances, it is plain
that no reasonable fact-finder could make such an adverse
credibility ruling”); Cao He Lin v. U.S. Dep’t of Justice,
428 F.3d 391, 395 (2d Cir. 2005) (holding that an error does
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not require remand if “notwithstanding identified errors,
there is no realistic possibility of a different result on
remand”); see also Paul v. Gonzales, 444 F.3d 148, 156 (2d
Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
520, 523 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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