13-3986 Liu v. Barr BIA Videla, IJ A098 472 361 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.

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 17th day of July, two thousand twenty.

PRESENT: REENA RAGGI, PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges. _____________________________________

MINGJIN LIU, Petitioner,

v. 13-3986 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Gary J. Yerman, Esq., New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Shelley R. Goad, Assistant Director; Carmel A. Morgan, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. 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 Mingjin Liu, a native and citizen of the

People’s Republic of China, seeks review of a September 30,

2013 decision of the BIA affirming an April 24, 2012 decision

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

asylum, withholding of removal, and relief under the

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

A 098 472 361 (B.I.A. Sept. 30, 2013), aff’g No. A 098 472 361

(Immig. Ct. N.Y. City Apr. 24, 2012). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

We have reviewed the decisions of both the IJ and the

BIA. See Yun-Zui Guan v. Gonzales,

(2d

Cir. 2005). We review adverse credibility determinations for

substantial evidence. See

(b)(4)(B); Hong Fei

Gao v. Sessions,

(2d Cir. 2018). “Considering

the totality of the circumstances, and all relevant factors,

a trier of fact may base a credibility determination on the

demeanor, candor, or responsiveness of the applicant . . . ,

the consistency between the applicant’s . . . written and

2 oral statements . . . , the internal consistency of each such

statement, [and] the consistency of such statements with

other evidence of record . . . , without regard to whether an

inconsistency, inaccuracy, or falsehood goes to the heart of

the applicant’s claim . . . .”

(b)(1)(B)(iii).

“We defer . . . 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.” Xiu Xia Lin v. Mukasey,

(2d Cir.

2008); accord Hong Fei Gao,

. Substantial

evidence supports the agency’s determination that Liu was not

credible as to his claim that he was persecuted because of

his opposition to and violation of Chinese family planning

laws.

The agency reasonably relied in part on Liu’s demeanor,

finding that parts of his testimony were evasive and not

responsive to the questions posed. We give particular

deference to the trier of fact’s assessment of demeanor. See

Majidi v. Gonzales,

, 81 n.1 (2d Cir. 2005). And

the record supports the IJ’s demeanor finding. For example,

the IJ asked Liu numerous times why he testified that he

worked in odd jobs from 1999 until he left China in 2005,

while his asylum application reported that he worked for a

3 construction company from May 2000 until December 2004 and

did not work after that. Liu did not answer the question,

asserting instead that he did individual work and did not

work for a construction company. Liu argues that he

attempted to explain the irregularity of his employment and

the IJ became frustrated and found his explanation lacking;

however, the IJ clarified that he understood Liu’s job

description, but was asking why Liu’s testimony was

inconsistent with his asylum application. Liu never

explained the inconsistency. In addition, despite multiple

questions, Liu never gave a direct answer as to whether he

lied during a visa interview. Contrary to Liu’s argument, a

demeanor finding does not have to be linked to inconsistent

testimony. See

The agency also reasonably relied on substantial

inconsistencies between Liu’s application and testimony

concerning his alleged detention and beating by Chinese

family planning authorities. His application states that he

was locked in a room at work, beaten and wounded on his upper

lip, and released back to work after he revealed his wife’s

location. In contrast, he testified that he was detained for

twenty days and beaten with electric batons on his head, leg,

and lip to the point that he passed out. While “asylum

4 applicants are not required to list every incident of

persecution” in their application, Pavlova v. INS,

(2d Cir. 2006), the length of the detention and

severity of a beating with an electric baton are facts that

Liu “would reasonably have been expected to disclose,” Hong

Fei Gao,

; see also Xiu Xia Lin,

(holding that petitioner’s failure to include the length

of her detention in her asylum application was, inter alia,

a proper basis for the IJ’s adverse credibility

determination). And the agency was not required to credit

Liu’s supplemental affidavit explaining this inconsistency

because he never mentioned that explanation during the

hearing. See Majidi,

(“A petitioner must do

more than offer a plausible explanation for his inconsistent

statements to secure relief; he must demonstrate that a

reasonable fact-finder would be compelled to credit his

testimony.” (internal quotation marks omitted)).

Liu’s testimony regarding the date he was fired from his

job, although tangential, bolsters the adverse credibility

determination. See Xiu Xia Lin,

(“[A]n IJ

may rely on any inconsistency or omission in making an adverse

credibility determination as long as the ‘totality of the

circumstances’ establishes that an asylum applicant is not

5 credible.” (quoting

(b)(1)(B)(iii))). And

having questioned Liu’s credibility, the agency reasonably

found that Liu failed to rehabilitate his testimony with

corroborating evidence. See Biao Yang v. Gonzales,

(2d Cir. 2007). Liu submitted statements from his

wife and her colleague in China recounting her forced

abortion, and a letter from his girlfriend stating that the

family planning authorities were still looking for him. The

agency reasonably afforded these documents diminished weight

because the authors were interested witnesses and unavailable

for cross-examination. See Y.C. v. Holder,

(2d Cir. 2013) (deferring to agency’s decision to afford

little weight to relative’s letter from China because it was

unsworn and from an interested witness); Xiao Ji Chen v. U.S.

Dep’t of Justice,

(2d Cir. 2006) (noting

that determinations concerning the weight of evidence lie

largely within the discretion of the agency). Given the

demeanor and inconsistency findings and the lack of reliable

corroboration, the agency’s adverse credibility determination

is supported by substantial evidence and is dispositive of

asylum, withholding of removal, and CAT relief because all

three forms of relief relied on the same factual predicate.

See

(b)(1)(B)(iii); Paul v. Gonzales,

, 155–57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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