2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-6-2012

Yong Liu v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2911

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2911

___________

YONG AI LIU,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A200-035-983)

Immigration Judge: Honorable Miriam K. Mills

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 2, 2012

Before: AMBRO, ALDISERT and NYGAARD, Circuit Judges

(Opinion filed: February 6, 2012)

___________

OPINION

___________

PER CURIAM

Petitioner, Yong Ai Liu, seeks review of the Board of Immigration Appeals’ 

(―BIA‖ or ―Board‖) final order of removal. For the reasons that follow, we will deny the 

petition for review. 

I.
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Liu is a native and citizen of China. He entered the United States in 2006 and was 

charged with removability pursuant to section 212(a)(6)(A)(i) of the Immigration and 

Nationality Act (INA) as an alien present without being admitted or paroled. See 8 

U.S.C. § 1182(a)(6)(A)(i). 

Liu conceded removability as charged, but sought asylum, withholding of 

removal, and protection under the Convention Against Torture (CAT). In his initial I-589 

application, Liu contended that he had experienced past persecution, and feared future 

persecution, due to his practice of Falun Gong. He claimed that, in June 2005, he had 

been arrested by village cadres, interrogated about his practice, beaten, and ordered to 

inform on the leaders of his group. Despite the fact that his application clearly stated that 

he was arrested for actually practicing Falun Gong, Liu curiously contended in an 

affidavit attached to the application that he did not practice Falun Gong, only spoke in 

support of it. (AR 535-36.) 

Liu subsequently filed an amended I-589 in which he claimed for the first time 

that he had been arrested, detained, and tortured for more than a month in January 2005. 

He also claimed for the first time that his mother had been detained and tortured in 1999 

and 2005 for practicing Falun Gong. 

At an August 2007 merits hearing before an Immigration Judge (IJ), Liu 

confusingly testified that he began practicing Falun Gong in 2004 ―[b]ecause he started 

having problem[s] with [his] stomach at [the] beginning of 2006.‖ (AR 435.) With 

respect to the alleged acts of persecution, Liu explained that, when he was detained in 
3

January 2005, the police had punched, kicked, and beaten him with a stick. He did not 

sustain any injuries, however, because the police ―used a telephone book as a padding 

when they beat [him] . . . [t]hey used a notebook as a padding and cover, too.‖ (AR 432.) 

Liu stated that he was not given any documentation that could confirm his arrest and 

detention. (AR 433.) Liu maintained that he had also been detained in June 2005, but 

only for a few hours.

The IJ concluded that Liu’s testimony lacked credibility and denied his 

applications for relief. The IJ explained that, ―[b]ased on a variety of [in]consistencies 

which go to the very heart of respondent’s claim, the Court finds the respondent’s claim 

for relief incredulous and likely frivolous with respect to the Falun Gong allegation.‖ 

(AR 410.) Upon review, the BIA remanded the matter to the IJ for further proceedings 

because certain portions of the hearing transcript were missing or indiscernible. 

Following remand, the IJ admitted the transcript from the prior hearing into the 

record and conducted a new hearing. When asked about the discrepancies between his 

two applications, Liu stated that his first I-589 was incomplete, that he forgot to include 

certain pertinent information, and that he signed it pursuant to his attorney’s request 

without reviewing it. When asked whether he had any witnesses who could corroborate 

his claim that he continues to practice Falun Gong in the United States, Liu said that he 

had asked witnesses to come but that they ―said it’s too much trouble‖ because they are 

―from out of state.‖ (AR 127.) 
4

 Following this second hearing, the IJ again made an adverse credibility 

determination and again denied relief. The BIA dismissed Liu’s appeal. The Board 

found no clear error in the IJ’s credibility determination and agreed with the IJ that Liu 

failed to present reasonably available corroborative evidence in support of his claim. 

Accordingly, the BIA ordered that Liu be removed to China. 

Liu now seeks review of the BIA’s order. 

II.

We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 

1252(a)(1). When, as in this case, ―the BIA issues a separate opinion . . . we review the 

BIA’s disposition and look to the IJ’s ruling only insofar as the BIA defers to it.‖ Huang 

v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010). We exercise de novo review over the 

BIA’s legal determinations. Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004). We 

review agency factual determinations, including findings concerning credibility, under

the substantial evidence standard, treating them as ―conclusive unless any reasonable 

adjudicator would be compelled to conclude to the contrary.‖ 8 U.S.C. § 1252(b)(4)(B).

Liu’s primary arguments on appeal concern the BIA’s determination that he failed 

to meet his burden of proof on his asylum claim. First, Liu claims that he provided 

credible testimony in support of his claim. Because Liu filed his asylum application after 

May 11, 2005, the provisions of the REAL ID Act governing credibility determinations 

apply. See Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007). Prior to the 

implementation of the REAL ID Act, minor omissions or inconsistencies that did not go 
5

to the heart of an asylum applicant’s claim were insufficient to support adverse credibility 

determinations. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Under the 

REAL ID Act, however, a trier of fact may base a credibility determination on any 

inconsistencies, without regard to whether they relate to the heart of the alien’s claim. 8 

U.S.C. § 1158(b)(1)(B)(iii). 

We have reviewed the record and conclude that substantial evidence supports the 

agency’s adverse credibility determination. As the BIA explained, there were significant 

inconsistencies in Liu’s story. For example, although Liu testified that he had been 

arrested and detained for over a month in January 2005, he failed to mention this 

incident—which is by far the most egregious—in his original asylum application. 

Instead, he claimed only that he had been arrested in June of that year and detained for a 

few hours. In addition, despite Liu’s contention in his applications and before the IJ that 

police had arrested him on these occasions for practicing Falun Gong, he stated in an 

affidavit to his initial I-589 that he did not practice it, but only spoke in support of it. 

Furthermore, while he stated in his amended I-589 that his mother had been arrested, 

detained, and tortured in 1999 for practicing Falun Gong, his original application fails to 

make any mention of his mother’s alleged persecution. Because we agree with the BIA 

that these inconsistencies undermined Liu’s credibility, we discern no error in the BIA’s 

credibility finding.

1

 

1

Liu argues that the BIA erred in failing to find that the IJ neglected to fully 

consider the explanations he provided for the inconsistencies within and between his first 
6

Liu also challenges the BIA’s determination that he failed to present reasonably 

available corroborative evidence in support of his claim. Corroboration may reasonably 

be expected for ―facts which are central to his or her claim and easily subject to 

verification.‖ Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001) (internal quotation 

marks omitted). We have consistently held that ―failure to produce corroborating 

evidence may undermine an applicant’s case where (1) the IJ identifies facts for which it 

is reasonable to expect the applicant to produce corroboration, (2) the applicant fails to 

corroborate, and (3) the applicant fails to adequately explain that failure.‖ Chukwu, 484 

F.3d at 191–92. 

Substantial evidence supports the BIA’s conclusion that Liu failed to present 

reasonably available corroborative evidence in support of his claim. As the BIA 

explained, Liu failed to submit any evidence regarding the injuries he allegedly sustained 

during his period of incarceration in January 2005, evidence regarding the June 2005 

arrest, or any statements corroborating his continued practice of Falun Gong in the United 

States. Although Liu argues on appeal that he gave adequate explanations as to why he 

was unable to obtain such corroboration, we agree with the agency that his explanations 

were unpersuasive. 

 

I-589, his second I-589, and his testimony. Based on our review of the record, however, 

it appears that the IJ sufficiently considered Liu’s explanations before reasonably 

rejecting them. See Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) 

(―Where there are two permissible views of the evidence, the factfinder’s choice between 

them cannot be clearly erroneous.‖) 

 
7

Next, Liu argues for the first time on appeal that the BIA erred in failing to find 

that the IJ abused her discretion by admitting portions of the transcript of the earlier 

proceeding into evidence. This claim is not properly before the Court because Liu failed 

to present it to the BIA. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594–95 (3d Cir. 

2003) (explaining that an alien must ―raise and exhaust his or her remedies as to each 

claim or ground for relief if he or she is to preserve the right of judicial review of that

claim‖).

Finally, we reject Liu’s arguments that the BIA erred in concluding that he was 

not entitled to withholding of removal or relief under the CAT. When, as in this case, 

―asylum, withholding of removal, and CAT claims are based on the same discredited 

testimony, the adverse credibility finding is fatal to all three claims.‖ Zine v. Mukasey, 

517 F.3d 535, 541 (8th Cir. 2008) (citation and internal quotation marks omitted). 

IV.

Accordingly, we will deny the petition for review.