16-406 

Liu v. Sessions 

BIA 

Christensen, IJ 

A077 718 725 

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 

29th day of June, two thousand seventeen. 

PRESENT: 

GUIDO CALABRESI,

JOSÉ A. CABRANES, 

GERARD E. LYNCH,

Circuit Judges. 

_____________________________________ 

DONGKAI LIU, 

 Petitioner, 

v. 16-406 

 NAC 

JEFFERSON B. SESSIONS III, UNITED 

STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Gary J. Yerman, Yerman & Jia, LLC, 

New York, NY. 

 

FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

Assistant Attorney General; Russel 

J.E. Verby, Senior Litigation 

Counsel; John D. Williams, Trial 

Attorney, Office of Immigration 

Litigation, United States 

Department of Justice, Washington, 

DC. 
2 

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 Dongkai Liu, a native and citizen of the 

People’s Republic of China, seeks review of a January 19, 2016, 

decision of the BIA, affirming a November 6, 2014, 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 Dongkai Liu, No. A077 718 725 

(B.I.A. Jan. 19, 2016), aff’g No. A077 718 725 (Immig. Ct. N.Y. 

City Nov. 6, 2014). We assume the parties’ familiarity with 

the underlying facts and procedural history in this case. 

 Under the circumstances of this case, we have reviewed both 

the IJ’s and the BIA’s opinions “for the sake of completeness.” 

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 

2006). The applicable standards of review are well 

established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. 

Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 

 For asylum applications like Liu’s, which are governed by 

the REAL ID Act, the agency may, “[c]onsidering the totality 

of the circumstances,” base a credibility finding on an 

applicant’s “demeanor, candor, or responsiveness,” and on 
3 

inconsistencies in an applicant’s statements and evidence, 

“without regard to whether” those inconsistencies go “to the 

heart of the applicant’s claim.” 8 U.S.C. 

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64. “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, 534 F.3d at 167. 

 The agency reasonably relied on inconsistencies concerning 

the alleged November 2011 phone call from the police warning 

Liu to stop attending an underground church. 8 U.S.C. 

§ 1158(b)(1)(B)(iii). Liu first testified that he received 

the call at home during his lunch break, but later testified 

that he received the call at his parents’ home. The IJ was not 

required to credit Liu’s explanation that this testimony was 

actually consistent because he would eventually inherit his 

parents’ home as his own because, as explained below, Liu’s 

testimony about where he lived was also inconsistent. In order 

to prevail after an adverse credibility determination based in 

part on a failure to explain an inconsistency, “[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 
4 

testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) 

(internal quotation marks omitted). Liu has not made that 

showing here. 

 The agency also reasonably relied on inconsistencies 

concerning Liu’s residence. Liu testified that he and his wife 

lived in housing provided by the factory that employed him. 

When asked how his wife was able to remain in factory housing 

in July 2012 if he was fired from the factory in January 2012, 

he changed his testimony and said that he did not live in factory 

housing but that his home “was privately owned.” C.A.R. 21. 

In his brief, he argues that he “never testified that he lived 

in factory-owned housing after he was fired,” but that assertion 

is contradicted by his testimony. Pet. Br. 13. 

 The adverse credibility determination is further bolstered 

by the omission in Liu’s wife’s letter of the alleged July 2012 

police visits. “An inconsistency and an omission 

are . . . functionally equivalent.” Xiu Xia Lin, 534 F.3d at 

166 n.3. The IJ was not required to credit Liu’s explanation 

that his wife told him about the visits over the phone, thereby 

making their exclusion from her letter reasonable. Majidi, 430 

F.3d at 80; see also Xiu Xia Lin, 534 F.3d at 166-67 & n.3. 

 The IJ’s demeanor finding, to which we defer, further 

supports the adverse credibility determination. Majidi, 430 
5 

F.3d at 81 n.1. The IJ observed that Liu was evasive and “became 

hesitant and unresponsive to certain questions, particularly 

with regard to his living situation in China and where he was 

when he received an initial phone call from the police.” C.A.R. 

53. Liu challenges the demeanor finding on the basis that 

neither the IJ nor the Government attorney noted his demeanor 

on the record. The inconsistencies outlined above, however, 

support the demeanor finding. We are “more confident in our 

review of observations about an applicant’s demeanor where, as 

here, they are supported by specific examples of inconsistent 

testimony.” Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 

109 (2d Cir. 2006); see Majidi, 430 F.3d at 81 n.1. 

 Having concluded that Liu was not credible, the agency did 

not err in further finding that Liu’s corroborating evidence 

was insufficient to rehabilitate his testimony. “An 

applicant’s failure to corroborate his . . . testimony may bear 

on credibility, because the absence of corroboration in general 

makes an applicant unable to rehabilitate testimony that has 

already been called into question.” Biao Yang v. Gonzales, 496 

F.3d 268, 273 (2d Cir. 2007). “We defer to the agency’s 

determination of the weight afforded to an alien’s documentary 

evidence.” Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) 

 The agency reasonably gave diminished weight to letters 
6 

from Liu’s wife and friends in China because they were authored 

by interested parties not subject to cross-examination. See

Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) 

(agency can give little weight to document drafted by interested 

witness not subject to cross examination), rev’d on other 

grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). 

The IJ also reasonably gave diminished weight the fine receipt 

allegedly issued by the Public Security Bureau because it was 

unauthenticated and did not identify to what the fine related. 

 Given the inconsistencies, the demeanor finding, and Liu’s 

lack of reliable corroboration, it cannot be said “that no 

reasonable fact-finder could make [an adverse] credibility 

ruling.” Xiu Xia Lin, 534 F.3d at 167. Because asylum, 

withholding of removal, and CAT relief were all based on the 

same factual predicate, the adverse credibility determination 

resolves all of Liu’s claims. Paul v. Gonzales, 444 F.3d 148, 

156-57 (2d Cir. 2006). 

 For the foregoing reasons, the petition for review is 

DENIED. As we have completed our review, the pending motion 

for a stay of removal in this petition is DISMISSED as moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk