10-4808-ag Liu v. Holder BIA Laforest, IJ A088 380 450 

### 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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 17 th** **day of February, two thousand twelve.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 Chief Judge, 8 **RAYMOND J. LOHIER, JR.,** 9 **SUSAN L. CARNEY,** 10 Circuit Judges**.** 11

**_______________________________________** 12 13 **YULAN LIU, AKA XIANG QIN MENG,** 14 Petitioner**,** 15 16 **v. 10-4808-ag** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL** 20 Respondent**.** 21

**______________________________________** 22 23 24 **FOR PETITIONER: Matthew J. Harris, Law Office of** 25 **Theodore M. Davis, Long Island City,** 26 **NY.** 27 28 **FOR RESPONDENT: Tony West, Assistant Attorney** 29 **General; Ada E. Bosque, Senior** 30 **Litigation Counsel; Puneet Cheema,** 31 **Trial Attorney, Office of** 32 **Immigration Litigation, Civil** 33 **Division, United States Department** 34 **of Justice, Washington, D.C.** 352 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Yulan Liu, a native and citizen of China, 5 seeks review of a November 9, 2010 order of the BIA 6 affirming the December 8, 2008 decision of Immigration Judge 7 (“IJ”) Brigitte Laforest denying Liu’s application for 8 asylum, withholding of removal, and relief under the 9 Convention Against Torture (“CAT”). In re Yulan Liu , No. 10 A088 380 450 (B.I.A. Nov. 9, 2010), aff’gNo. A088 380 450 11 (Immig. Ct. N.Y. City Dec. 8, 2008). We assume the parties’ 12 familiarity with the underlying facts and procedural history 13 in this case. 14 Under the circumstances of this case, we have reviewed 15 the IJ’s decision as supplemented by the BIA. See Yan Chen 16 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 17 applicable standards of review are well-established. See 18 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 19 510, 513 (2d Cir. 2009). Because Liu has not challenged the 20 agency’s pretermission of her asylum application, we 21 consider only her claims for withholding of removal and CAT 223 relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 1 n.1, 545 n.7 (2d Cir. 2005). 2 Here, the agency reasonably found that Liu was not 3 credible because she could not answer questions about 4 articles she claimed to have written for the Chinese 5 Democracy Party (“CDP”). See 8 U.S.C. § 1158(b)(1)(B)(iii) 6 (providing that for asylum applications governed by the REAL 7 ID Act, the agency may, “[c]onsidering the totality of the 8 circumstances,” base a credibility finding on an asylum 9 applicant’s “responsiveness” and inconsistencies in her 10 statements without regard to whether they go “to the heart 11 of the applicant’s claim”). Although Liu argues that these 12 articles were not submitted to demonstrate her knowledge, 13 she testified before the IJ that she wrote them and thus the 14 fact that she did not have knowledge of their contents 15 indicated that she gave false or misleading testimony, and 16 that false testimony is substantial evidence of a lack of 17 credibility. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d 18 Cir. 2007) (relying on the maxim falsus in uno, falsus in 19 omnibusto find that once an IJ concludes that a document is 20 false, he or she is “free to deem suspect other documents 21 (and to disbelieve other testimony) that depend for 22 probative weight upon [the applicant’s] veracity”). 234 Having found that Liu’s credibility was in doubt, the 1 agency reasonably expected her to provide some corroboration 2 in order to rehabilitate her testimony. See Biao Yang v. 3 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). In light of 4 Liu’s misleading testimony, the IJ did not err in giving 5 little weight to the unsworn letters she submitted because 6 the IJ had no opportunity to question the letters’ authors. 7 Moreover, the IJ reasonably gave little weight to Liu’s 8 husband’s letter because its account of why Liu protested at 9 her factory (that the factory had not been paying its 10 workers for months, without any mention that the factory had 11 closed) differed from Liu’s account (that the factory had 12 closed without any mention that it had not been paying its 13 workers for months). 14 Additionally, Liu failed to provide any medical 15 evidence establishing that she was hospitalized following 16 the protest or that she received any other medical treatment 17 for her alleged injuries, and was thus unable to corroborate 18 her explanation that she could not answer questions about 19 the articles she claimed to have written because of injuries 20 she suffered during the protest. The IJ was not 21 unreasonable in concluding that such evidence would have 225 been available despite a change in the hospital’s name, or 1 that Liu could have at least obtained documentation that her 2 prior records were no longer available. See 8 U.S.C. § 3 1252(b)(4) (“No court shall reverse a determination made by 4 a trier of fact with respect to the availability of 5 corroborating evidence . . . unless the court finds . . . 6 that a reasonable trier of fact is compelled to conclude 7 that such corroborating evidence is unavailable.”). 8 Together, the IJ’s findings that Liu was not truthful 9 concerning whether she wrote the CDP articles and that she 10 did not provide sufficient corroborating evidence to 11 rehabilitate her testimony provide substantial evidence in 12 support of the agency’s adverse credibility determination. 13

See 8 U.S.C. § 1158(b)(1)(B)(iii). Liu is correct that the 14 IJ did not make any explicit demeanor finding in evaluating 15 her credibility. Therefore, the BIA mischaracterized the 16 IJ’s decision when it stated that the IJ’s demeanor finding 17 supported the credibility determination. The BIA’s 18 mischaracterization does not require remand, however, 19 because the IJ identified “ample, error-free grounds that 20 provide substantial evidence to support [the] adverse 21 credibility determination,” and, despite the BIA’s error, 226 “we can state with confidence that the IJ would adhere to 1 his decision were the petition remanded.” Singh v. BIA, 438 2 F.3d 145, 149 (2d Cir. 2006) (quotation omitted). 3 The agency’s adverse credibility determination 4 forecloses Liu’s eligibility for withholding of removal 5 based on past persecution as she did not establish that the 6 factory protest truly occurred. See Paul v. Gonzales, 444 7 F.3d 148, 156 (2d Cir. 2006). Additionally, the agency 8 reasonably determined that Liu did not establish a 9 likelihood that she would be persecuted or tortured if 10 returned to China based on her CDP activities because her 11 husband’s letter, stating that the authorities knew about 12 the activities, was not reliable; the authorities were 13 unlikely to know or have reason to know of her activities 14 based either on her name in the articles or photographs 15 taken in the United States; and she did not credibly 16 establish that she would continue pro-democracy activities 17 in China. Liu’s reliance on reports describing the 18 imprisonment of two individuals in China for publishing 19 articles on United States-based websites is unavailing 20 because these 2002 and 2006 incidents do not compel the 21 conclusion that Liu will more likely than not be mistreated. 227 Accordingly, substantial evidence supports the agency’s 1 determination that Liu did not establish her eligibility for 2 withholding of removal or CAT relief. See Hongsheng Leng v. 3 Mukasey, 528 F.3d 135, 141 (2d Cir. 2008). 4 For the foregoing reasons, the petition for review is 5 DENIED. As we have completed our review, any stay of 6 removal that the Court previously granted in this petition 7 is VACATED, and any pending motion for a stay of removal in 8 this petition is DISMISSED as moot. Any pending request for 9 oral argument in this petition is DENIED in accordance with 10 Federal Rule of Appellate Procedure 34(a)(2), and Second 11 Circuit Local Rule 34.1(b). 12

FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk 14 15 16