16-3209 Liu v. Sessions BIA Rohan, IJ A205 894 814

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 9th day of July, two thousand eighteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 GUIDO CALABRESI, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _____________________________________ 12 13 FENGBAO LIU, 14 Petitioner, 15 16 v. 16-3209 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Louis H. Klein, The Kasen Law Firm, 24 PLLC, Flushing, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Leslie McKay, 28 Senior Litigation Counsel; Margot 29 L. Carter, Trial Attorney, Office 30 of Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 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

4 is DENIED.

5 Petitioner Fengbao Liu, a native and citizen of the

6 People’s Republic of China, seeks review of a September 1,

7 2016, decision of the BIA affirming a June 9, 2015, decision

8 of an Immigration Judge (“IJ”) denying Liu’s application for

9 asylum, withholding of removal, and relief under the

10 Convention Against Torture (“CAT”). In re Fengbao Liu, No.

11 A 205 894 814 (B.I.A. Sept. 1, 2016), aff’g No. A 205 894 814

12 (Immig. Ct. N.Y. City June 9, 2015). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case.

15 Under the circumstances of this case, we have reviewed

16 both the IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales,

17

(2d Cir. 2005). The applicable standards

18 of review are well established. See 8 U.S.C.

19 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey,

, 165-

20 66 (2d Cir. 2008).

21 The governing REAL ID Act credibility standard provides

22 that the agency must “[c]onsider[] the totality of the

2 1 circumstances,” and may base a credibility finding on

2 inconsistencies or omissions within or between his and his

3 witness’s written and oral statements, “without regard to

4 whether” any inconsistencies go “to the heart of the

5 applicant’s claim.”

(b)(1)(B)(iii); Xiu Xia

6 Lin,

. “[E]ven where an IJ relies

7 on discrepancies or lacunae that, if taken separately,

8 concern matters collateral or ancillary to the claim, the

9 cumulative effect may nevertheless be deemed consequential by

10 the fact-finder.” Tu Lin v. Gonzales,

(2d

11 Cir. 2006) (internal citation and quotation marks omitted

12 omitted). “We defer . . . to an IJ’s credibility

13 determination unless . . . it is plain that no reasonable

14 fact-finder could make such an adverse credibility ruling.”

15 Xiu Xia Lin,

.

16 Initially, as the Government observes, Liu has both

17 waived and failed to exhaust challenges to the specific

18 inconsistency findings underlying the adverse credibility

19 determination. Lin Zhong v. U.S. Dep’t of Justice,

(2d Cir. 2007) (explaining that issue exhaustion is

21 mandatory); Norton v. Sam’s Club,

(2d Cir.

22 1998) (“Issues not sufficiently argued in the briefs are

3 1 considered waived and normally will not be addressed on

2 appeal.”). These findings, which relate to the dates Liu’s

3 wife went into hiding, when his wife’s forced abortion

4 occurred, and when his friend was arrested for distributing

5 anti-government leaflets, are supported by the record and

6 stand as appropriate bases for the credibility determination.

7 See Shunfu Li v. Mukasey,

(2d Cir. 2008).

8 Moreover, Liu’s challenges to the adverse credibility

9 determination fail. First, Liu argues that he testified

10 consistently with his application. But his argument is

11 misplaced because the agency reasonably based the adverse

12 credibility determination on internal inconsistencies in his

13 testimony.

(b)(1)(B)(iii); Xiu Xia Lin, 534

14 F.3d at 163-64. Second, although a discrepancy in dates need

15 not be fatal if “minor and isolated,” Diallo v. INS,

(2d Cir. 2000), Liu’s date discrepancies were

17 extensive and called into question his familiarity with the

18 timeline of his own claim. Third, Liu now asserts that the

19 inconsistencies are explained by nervousness and his lack of

20 education. In addition to Liu’s failure to exhaust these

21 explanations, the IJ would not have been compelled to accept

22 them. Majidi v. Gonzales,

(2d Cir. 2005) (“A

4 1 petitioner must do more than offer a plausible explanation

2 for his inconsistent statements to secure relief; he must

3 demonstrate that a reasonable fact-finder would be compelled

4 to credit his testimony.” (internal quotation marks

5 omitted)); cf. Yun-Zui Guan,

n.6 (finding

6 that applicant’s “mere recitation that he was nervous or felt

7 pressured during an airport interview will not automatically

8 prevent the IJ or BIA from relying [o]n statements in such

9 interviews when making adverse credibility determinations”).

10 While Liu also contends that additional corroboration

11 was not reasonably available, the agency did not deny relief

12 for failure to submit corroborating evidence. See 8 U.S.C.

13 § 1158(b)(1)(B)(ii) (“Where the trier of fact determines that

14 the applicant should provide evidence that corroborates

15 otherwise credible testimony, such evidence must be provided

16 unless the applicant does not have the evidence and cannot

17 reasonably obtain the evidence.”). Instead, the agency

18 concluded that Liu’s corroborating evidence was insufficient

19 to rehabilitate his credibility or independently satisfy his

20 burden of proof given the lack of detail in the letters he

21 submitted. This was a reasonable determination that Liu does

22 not challenge here. See Biao Yang v. Gonzales,

,

5 1 273 (2d Cir. 2007) (“An applicant’s failure to corroborate

2 his or her testimony may bear on credibility, because the

3 absence of corroboration in general makes an applicant unable

4 to rehabilitate testimony that has already been called into

5 question.”); see also Y.C. v. Holder,

(2d

6 Cir. 2013) (“We generally defer to the agency’s evaluation of

7 the weight to be afforded an applicant’s documentary

8 evidence.”).

9 Given the foregoing inconsistency and corroboration

10 findings, we conclude that the adverse credibility

11 determination is supported by the “totality of the

12 circumstances.” Xiu Xia Lin,

. The adverse

13 credibility determination is dispositive of asylum,

14 withholding of removal, and CAT relief because all three

15 claims are based on the same factual predicate. See Paul v.

16 Gonzales,

(2d Cir. 2006).

17 For the foregoing reasons, the petition for review is

18 DENIED. As we have completed our review, any stay of removal

19 that the Court previously granted in this petition is VACATED,

20 and any pending motion for a stay of removal in this petition

21 is DISMISSED as moot. Any pending request for oral argument

22 in this petition is DENIED in accordance with Federal Rule of

6 1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2 34.1(b).

3 FOR THE COURT: 4 Catherine O’Hagan Wolfe 5 Clerk of Court

7