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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 17th 4 day of February, two thousand twelve.

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 RAYMOND J. LOHIER, JR.,

10 SUSAN L. CARNEY,

11 Circuit Judges. 

12 _______________________________________

13

14 YULAN LIU, AKA XIANG QIN MENG,

15 Petitioner, 16

17 v. 10-4808-ag

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL

21 Respondent. 22 ______________________________________ 23

24

25 FOR PETITIONER: Matthew J. Harris, Law Office of

26 Theodore M. Davis, Long Island City,

27 NY.

28

29 FOR RESPONDENT: Tony West, Assistant Attorney

30 General; Ada E. Bosque, Senior

31 Litigation Counsel; Puneet Cheema,

32 Trial Attorney, Office of

33 Immigration Litigation, Civil

34 Division, United States Department

35 of Justice, Washington, D.C.
2

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 Yulan Liu, a native and citizen of China,

6 seeks review of a November 9, 2010 order of the BIA

7 affirming the December 8, 2008 decision of Immigration Judge

8 (“IJ”) Brigitte Laforest denying Liu’s application for

9 asylum, withholding of removal, and relief under the

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

11 A088 380 450 (B.I.A. Nov. 9, 2010), aff’g No. A088 380 450

12 (Immig. Ct. N.Y. City Dec. 8, 2008). 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 the IJ’s decision as supplemented by the BIA. See Yan Chen

17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

18 applicable standards of review are well-established. See 

19 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

20 510, 513 (2d Cir. 2009). Because Liu has not challenged the

21 agency’s pretermission of her asylum application, we

22 consider only her claims for withholding of removal and CAT
3

1 relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541

2 n.1, 545 n.7 (2d Cir. 2005).

3 Here, the agency reasonably found that Liu was not

4 credible because she could not answer questions about

5 articles she claimed to have written for the Chinese

6 Democracy Party (“CDP”). See 8 U.S.C. § 1158(b)(1)(B)(iii)

7 (providing that for asylum applications governed by the REAL

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

9 circumstances,” base a credibility finding on an asylum

10 applicant’s “responsiveness” and inconsistencies in her

11 statements without regard to whether they go “to the heart

12 of the applicant’s claim”). Although Liu argues that these

13 articles were not submitted to demonstrate her knowledge,

14 she testified before the IJ that she wrote them and thus the

15 fact that she did not have knowledge of their contents

16 indicated that she gave false or misleading testimony, and

17 that false testimony is substantial evidence of a lack of

18 credibility. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d

19 Cir. 2007) (relying on the maxim falsus in uno, falsus in

20 omnibus to find that once an IJ concludes that a document is

21 false, he or she is “free to deem suspect other documents

22 (and to disbelieve other testimony) that depend for

23 probative weight upon [the applicant’s] veracity”).
4

1 Having found that Liu’s credibility was in doubt, the

2 agency reasonably expected her to provide some corroboration

3 in order to rehabilitate her testimony. See Biao Yang v.

4 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). In light of

5 Liu’s misleading testimony, the IJ did not err in giving

6 little weight to the unsworn letters she submitted because

7 the IJ had no opportunity to question the letters’ authors.

8 Moreover, the IJ reasonably gave little weight to Liu’s

9 husband’s letter because its account of why Liu protested at

10 her factory (that the factory had not been paying its

11 workers for months, without any mention that the factory had

12 closed) differed from Liu’s account (that the factory had

13 closed without any mention that it had not been paying its

14 workers for months). 

15 Additionally, Liu failed to provide any medical

16 evidence establishing that she was hospitalized following

17 the protest or that she received any other medical treatment

18 for her alleged injuries, and was thus unable to corroborate

19 her explanation that she could not answer questions about

20 the articles she claimed to have written because of injuries

21 she suffered during the protest. The IJ was not

22 unreasonable in concluding that such evidence would have
5

1 been available despite a change in the hospital’s name, or

2 that Liu could have at least obtained documentation that her

3 prior records were no longer available. See 8 U.S.C. §

4 1252(b)(4) (“No court shall reverse a determination made by

5 a trier of fact with respect to the availability of

6 corroborating evidence . . . unless the court finds . . .

7 that a reasonable trier of fact is compelled to conclude

8 that such corroborating evidence is unavailable.”).

9 Together, the IJ’s findings that Liu was not truthful

10 concerning whether she wrote the CDP articles and that she

11 did not provide sufficient corroborating evidence to

12 rehabilitate her testimony provide substantial evidence in

13 support of the agency’s adverse credibility determination. 

14 See 8 U.S.C. § 1158(b)(1)(B)(iii). Liu is correct that the

15 IJ did not make any explicit demeanor finding in evaluating

16 her credibility. Therefore, the BIA mischaracterized the

17 IJ’s decision when it stated that the IJ’s demeanor finding

18 supported the credibility determination. The BIA’s

19 mischaracterization does not require remand, however,

20 because the IJ identified “ample, error-free grounds that

21 provide substantial evidence to support [the] adverse

22 credibility determination,” and, despite the BIA’s error,
6

1 “we can state with confidence that the IJ would adhere to

2 his decision were the petition remanded.” Singh v. BIA, 438

3 F.3d 145, 149 (2d Cir. 2006) (quotation omitted). 

4 The agency’s adverse credibility determination

5 forecloses Liu’s eligibility for withholding of removal

6 based on past persecution as she did not establish that the

7 factory protest truly occurred. See Paul v. Gonzales, 444

8 F.3d 148, 156 (2d Cir. 2006). Additionally, the agency

9 reasonably determined that Liu did not establish a

10 likelihood that she would be persecuted or tortured if

11 returned to China based on her CDP activities because her

12 husband’s letter, stating that the authorities knew about

13 the activities, was not reliable; the authorities were

14 unlikely to know or have reason to know of her activities

15 based either on her name in the articles or photographs

16 taken in the United States; and she did not credibly

17 establish that she would continue pro-democracy activities

18 in China. Liu’s reliance on reports describing the

19 imprisonment of two individuals in China for publishing

20 articles on United States-based websites is unavailing

21 because these 2002 and 2006 incidents do not compel the

22 conclusion that Liu will more likely than not be mistreated. 
7

1 Accordingly, substantial evidence supports the agency’s

2 determination that Liu did not establish her eligibility for

3 withholding of removal or CAT relief. See Hongsheng Leng v.

4 Mukasey, 528 F.3d 135, 141 (2d Cir. 2008).

5 For the foregoing reasons, the petition for review is

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

7 removal that the Court previously granted in this petition

8 is VACATED, and any pending motion for a stay of removal in

9 this petition is DISMISSED as moot. Any pending request for

10 oral argument in this petition is DENIED in accordance with

11 Federal Rule of Appellate Procedure 34(a)(2), and Second

12 Circuit Local Rule 34.1(b).

13 FOR THE COURT: 

14 Catherine O’Hagan Wolfe, Clerk

15

16