11-4557 Liu v. Holder BIA VanWyke, IJ A088 121 646 

### 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 Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 11 th** **day of September, two thousand thirteen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **JON O. NEWMAN,** 8 **GERARD E. LYNCH,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **JUN LIU,** 13 Petitioner**,** 14 15 **v. 11-4557** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Gary J. Yerman, New York, NY** 23 24 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 25 **Attorney General; Luis E. Perez,** 26 **Senior Litigation Counsel; Don G.** 27 **Scroggin, Trial Attorney, Office of** 28 **Immigration Litigation, Civil** 29 **Division, United States Department** 30 **of Justice, Washington, D.C.** 31UPON 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 DISMISSED in part and DENIED in part. 4 Petitioner Jun Liu seeks review of an October 11, 2011 5 order of the BIA affirming the October 14, 2009 decision of 6 an Immigration Judge (“IJ”) denying his application for 7 asylum, withholding of removal, and relief under the 8 Convention Against Torture (“CAT”). In re Jun Liu , No. A088 9 121 646 (B.I.A. Oct. 11, 2011), aff’gNo. A088 121 646 10 (Immig. Ct. N.Y. City Oct. 14, 2009). We assume the 11 parties’ familiarity with the underlying facts and 12 procedural history in this case. 13 Under the circumstances of this case, we have reviewed 14 the decision of the IJ as supplemented by the BIA. See Yan 15 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 16 applicable standards of review are well-established. See 17 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 18 510, 513 (2d Cir. 2009). 19 Insofar as Liu challenges the denial of asylum and CAT 20 relief, we dismiss his petition for review for lack of 21 jurisdiction. We lack jurisdiction to review the agency’s 22

2denial of asylum because Liu’s argument merely disputes the 1 agency’s fact-finding regarding the timeliness of his asylum 2 application, see8 U.S.C. § 1158(a)(3), and we lack 3 jurisdiction to review the agency’s denial of CAT relief 4 because Liu did not challenge the denial of that relief 5 before the BIA. See8 U.S.C. § 1252(d)(1); Karaj v. 6 Gonzales, 462 F.3d 113, 119 (2d Cir. 2006). 7 Liu’s challenges to the agency’s denial of withholding 8 of removal are without merit. As an initial matter, Liu 9 argues that he was eligible for withholding of removal 10 because he demonstrated “other resistance” to China’s family 11 planning policy under Shi Liang Lin v. U.S. Dep’t of 12 Justice , 494 F.3d 296 (2d Cir. 2007) (en banc). This issue 13 was not raised before the BIA, and will not be considered 14 here. See Lin Zhong v. U.S. Dep’t of Justice , 480 F.3d 104, 15 119-20 (2d Cir. 2007). 16 As to the claim based on prosecution for membership in 17 an underground church, Liu challenges the adverse 18 credibility finding. For applications governed by the REAL 19 ID Act, such as Liu’s, the agency may base a credibility 20 finding on an applicant’s demeanor, the plausibility of his 21 account, or inconsistencies in his statements, without 22

3regard to whether they go “to the heart of the applicant’s 1 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Substantial evidence 2 supports the agency’s adverse credibility determination. 3 Liu contends that the IJ and BIA placed too much weight 4 on his hesitancy in answering questions. Liu argued that it 5 can be explained by his lack of experience testifying in 6 court or through a translator. However, we defer to the 7 IJ’s assessment of Liu’s demeanor because the IJ had “the 8 unique advantage . . . of having heard directly from [him].” 9 See Majidi v. Gonzales , 430 F.3d 77, 81 n.1 (2d Cir. 10 2005)(citation omitted). 11 The IJ properly relied on the sketchiness of the asylum 12 application; however an IJ may rely on omissions in making a 13 credibility determination. See Xiu Xia Lin v. Mukasey, 534 14 F.3d 162, 166 n.3 (2d Cir. 2008). The BIA also relied on 15 the issuance of a Chinese passport to Liu in the United 16 States; however we defer to the factfinder’s inference that 17 the Chinese government would likely not issue a passport to 18 a wanted fugitive. See Siewe v. Gonzales , 480 F.3d 160, 19 167-68 (2d Cir. 2007). 20 Liu cites background evidence demonstrating the 21 persecution of some Christians in China to corroborate his 22

4testimony. However, nothing suggests that the agency did 1 not take into account this evidence,see Xiao Ji Chen, 471 2 F.3d 315, 337 n.17 (2d Cir. 2006)(presuming that the agency 3 “has taken into account all of the evidence before [it], 4 unless the record compellingly suggests otherwise”); and the 5 persecution of some Christians in China would not rebut the 6 finding that Liu’s testimony did not credibly establish that 7 he would be subjected to such persecution. In sum, the 8 agency’s adverse credibility determination is supported by 9 substantial evidence and supports its denial of Liu’s 10 application for withholding of removal based on his status 11 as a Christian. 12 For the foregoing reasons, the petition for review is 13 DISMISSED in part and DENIED in part. As we have completed 14 our review, the pending motion for a stay of removal in this 15 petition is DISMISSED as moot. 16 17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19

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