20-838 Liu v. Garland BIA Zagzoug, IJ A208 921 888 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.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 11th day of July, two thousand twenty-two. 5 6 PRESENT: 7 ROBERT D. SACK, 8 RAYMOND J. LOHIER, JR., 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 XUXING LIU, 14 Petitioner, 15 16 v. 20-838 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Gerald Karikari, Esq., New York, 24 NY. 25 26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 27 Assistant Attorney General; Greg 28 D. Mack, Senior Litigation 1 Counsel; Corey L. Farrell, 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC.

6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petition for review

9 is DENIED.

10 Petitioner Xuxing Liu, a native and citizen of the

11 People’s Republic of China, seeks review of a February 13,

12 2020 decision of the BIA affirming an April 13, 2018 decision

13 of an Immigration Judge (“IJ”) denying asylum, withholding of

14 removal, and relief under the Convention Against Torture

15 (“CAT”). In re Xuxing Liu, No. A 208 921 888 (B.I.A. Feb.

16 13, 2020), aff’g No. A 208 921 888 (Immig. Ct. N.Y. City Apr.

17 13, 2018). We assume the parties’ familiarity with the

18 underlying facts and procedural history.

19 Under the circumstances, we review the IJ’s decision as

20 modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of

21 Justice,

(2d Cir. 2005). To determine

22 whether an asylum applicant has sustained his burden of proof,

23 the agency “weigh[s] credible testimony along with other

24 evidence of record.”

(b)(1)(B)(ii). We find 2 1 no error in the agency’s conclusion that Liu failed to meet

2 his burden of proof as to his claim of past persecution on

3 account of his practice of Christianity.

4 Substantial evidence supports the agency’s adverse

5 credibility determination. See

(b)(4)(B);

6 Hong Fei Gao v. Sessions,

(2d Cir. 2018).

7 “Considering the totality of the circumstances, and all

8 relevant factors, a trier of fact may base a credibility

9 determination on the demeanor, candor, or responsiveness of

10 the applicant or witness, . . . the consistency between the

11 applicant’s or witness’s written and oral statements . . . ,

12 the internal consistency of each such statement, [and] the

13 consistency of such statements with other evidence of record

14 . . . without regard to whether an inconsistency, inaccuracy,

15 or falsehood goes to the heart of the applicant’s claim, or

16 any other relevant factor.”

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

17 “We defer . . . to an IJ’s credibility determination unless,

18 from the totality of the circumstances, it is plain that no

19 reasonable fact-finder could make such an adverse credibility

20 ruling.” Xiu Xia Lin v. Mukasey,

(2d Cir.

21 2008); accord Hong Fei Gao,

.

3 1 The agency appropriately relied on inconsistencies and

2 an omission relating to whether the police continued to look

3 for Liu in China. See

(b)(1)(B)(iii); Likai

4 Gao v. Barr,

, 145 n.8 (2d Cir. 2020) (“[E]ven a

5 single inconsistency might preclude an alien from showing

6 that an IJ was compelled to find him credible. Multiple

7 inconsistencies would so preclude even more forcefully.”).

8 Liu wrote that the police returned to his parents’ home on

9 several occasions after he left China, threatening his

10 parents that he would be “arrested and detained for ten years”

11 and “punished severely” if he did not return and report to

12 them. He similarly testified that he would be detained for

13 at least ten years if he returned. However, on cross-

14 examination, he testified that he would visit his parents in

15 China if the IJ granted him asylum, and expressed uncertainty

16 about whether police had any active interest in him. The IJ

17 correctly found that these responses “undermine[d] both the

18 subjective fear and the objective fear” central to Liu’s

19 asylum application, which was based on fear of being harmed

20 by police who were actively looking for him. Certified

21 Administrative Record at 74. Although voluntary return trips

4 1 to one’s home country are not necessarily evidence of a lack

2 of credibility, the agency reasonably relied on Liu’s

3 statement because it undermined his allegation that he would

4 be arrested if he returned—an allegation qualified only by

5 Liu’s statement on cross-examination that he would want to

6 know if it was safe for him to return and whether the police

7 were still looking for him. Id.; see Kone v. Holder, 596

, 150–51 (2d Cir. 2010). Moreover, a 2018 letter

9 from Liu’s mother did not mention police visits or threats

10 after Liu arrived in the United States in 2016. See Xiu Xia

11 Lin,

(permitting consideration of

12 discrepancies between the petitioner’s testimony and letters

13 from third parties); see also Hong Fei Gao, 891 F.3d at 78–

14 79, 81 (cautioning against reliance on omissions in third-

15 party statements but holding that the probative value of an

16 omission depends on whether the omitted facts are ones that

17 an applicant or witness “would reasonably have been expected

18 to disclose under the relevant circumstances”). Liu’s

19 explanation that his mother did not refer to those incidents

20 in her letter because she told him about them previously was

21 not compelling because the letter was addressed to the IJ and

5 1 submitted to support the asylum claim. See Majidi v.

2 Gonzales,

(2d Cir. 2005) (“A petitioner must

3 do more than offer a plausible explanation for his

4 inconsistent statements to secure relief; he must demonstrate

5 that a reasonable fact-finder would be compelled to credit

6 his testimony.” (quotation marks omitted)).

7 The agency also reasonably relied on Liu’s demeanor. See

8

(b)(1)(B)(iii); Majidi,

n.1

9 (“[a] fact-finder who assesses testimony together with

10 witness demeanor is in the best position to discern . . .

11 whether a witness who hesitated in a response was nevertheless

12 attempting truthfully to recount what he recalled of key

13 events” (quotation marks omitted)); Li Hua Lin v. U.S. Dep’t

14 of Justice,

(2d Cir. 2006) (“We can be . .

15 . more confident in our review of observations about an

16 applicant’s demeanor where . . . they are supported by

17 specific examples of inconsistent testimony.”). Contrary to

18 Liu’s argument that the IJ did not give specific examples to

19 support the demeanor finding, the IJ (1) found that Liu’s

20 demeanor was “flat,” and that his testimony did not ring true

21 because it was delivered in a “rehearsed sounding manner” at

6 1 a “mechanical, very quick pace” even when describing past

2 events that had allegedly caused him to cry and tremble, and

3 (2) explained that Liu’s testimony appeared “highly

4 memorized, conveyed with only enough detail to meet the four

5 corners of his application.” Liu contends that he gave

6 succinct answers due to his limited education, but he fails

7 to explain how a limited education would cause him to testify

8 in a manner the IJ found flat and rehearsed. Given the

9 demeanor finding, inconsistencies, and omissions, substantial

10 evidence supports the adverse credibility determination. See

11 Hong Fei Gao,

; Xiu Xia Lin, 534 F.3d at 165–

12 66.

13 Nor did the agency err in concluding that Liu did not

14 otherwise meet his burden of proof with reliable

15 corroborating evidence. See

(b)(1)(B)(ii)

16 (“The testimony of the applicant may be sufficient to sustain

17 the applicant’s burden without corroboration, but only if the

18 applicant satisfies the trier of fact that the applicant’s

19 testimony is credible, is persuasive, and refers to specific

20 facts sufficient to demonstrate that the applicant is a

21 refugee.”); see Wei Sun v. Sessions,

(2d Cir.

7 1 2018). “Where the trier of fact determines that the

2 applicant should provide evidence that corroborates otherwise

3 credible testimony, such evidence must be provided unless the

4 applicant does not have the evidence and cannot reasonably

5 obtain the evidence.”

(b)(1)(B)(ii). Given

6 the credibility concerns discussed above, the agency

7 reasonably found that Liu’s testimony alone was

8 insufficiently persuasive to satisfy his burden of proof

9 without certain reasonably available corroborating evidence.

10 Id.; Wei Sun,

. The agency did not err in

11 finding that Liu’s supporting evidence was insufficient to

12 rehabilitate his credibility or that evidence from an

13 uninterested witness regarding his church attendance was

14 reasonably available. See Biao Yang v. Gonzales,

(2d Cir. 2007) (“An applicant’s failure to

16 corroborate his or her testimony may bear on credibility,

17 because the absence of corroboration in general makes an

18 applicant unable to rehabilitate testimony that has already

19 been called into question.”). Liu provided letters from his

20 mother and a friend in China to corroborate his account of

21 past harm, and testimony from his sister, a letter from his

8 1 pastor, a baptismal certificate, and photographs to

2 corroborate his practice of Christianity in the United

3 States. The IJ reasonably gave diminished weight to the

4 letters and testimony from Liu’s family and friend because

5 they were from interested witnesses. The IJ also reasonably

6 found the sister’s testimony unpersuasive because she had

7 direct knowledge of Liu attending church on only one occasion.

8 See Y.C. v. Holder,

(2d Cir. 2013)

9 (deferring to agency decision to afford little weight to

10 petitioner’s husband’s letter because it was unsworn and from

11 an interested witness). Although Liu presented documentary

12 evidence regarding his religious practice, the IJ did not err

13 in finding that someone from his church could have testified.

14 Liu’s testimony that the people he asked did not have legal

15 status and the pastor was busy did not demonstrate that a

16 witness was unavailable. See

(b)(4) (“No

17 court shall reverse a determination made by a trier of fact

18 with respect to the availability of corroborating evidence .

19 . . unless . . . a reasonable trier of fact is compelled to

20 conclude that such corroborating evidence is unavailable.”);

21 Wei Sun, 883 F.3d at 30–31.

9 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 7

10