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.

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

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 11th 4 day of September, two thousand thirteen.

5

6 PRESENT:

7 DENNIS JACOBS,

8 JON O. NEWMAN,

9 GERARD E. LYNCH,

10 Circuit Judges. 

11 _____________________________________

12

13 JUN LIU,

14 Petitioner, 15

16 v. 11-4557

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Gary J. Yerman, New York, NY

24

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

26 Attorney General; Luis E. Perez,

27 Senior Litigation Counsel; Don G.

28 Scroggin, Trial Attorney, Office of

29 Immigration Litigation, Civil

30 Division, United States Department

31 of Justice, Washington, D.C.
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 DISMISSED in part and DENIED in part.

5 Petitioner Jun Liu seeks review of an October 11, 2011

6 order of the BIA affirming the October 14, 2009 decision of

7 an Immigration Judge (“IJ”) denying his application for

8 asylum, withholding of removal, and relief under the

9 Convention Against Torture (“CAT”). In re Jun Liu, No. A088

10 121 646 (B.I.A. Oct. 11, 2011), aff’g No. A088 121 646

11 (Immig. Ct. N.Y. City Oct. 14, 2009). We assume the

12 parties’ familiarity with the underlying facts and

13 procedural history in this case.

14 Under the circumstances of this case, we have reviewed

15 the decision of the IJ as supplemented by the BIA. See Yan

16 Chen 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). 

20 Insofar as Liu challenges the denial of asylum and CAT

21 relief, we dismiss his petition for review for lack of

22 jurisdiction. We lack jurisdiction to review the agency’s

2
1 denial of asylum because Liu’s argument merely disputes the

2 agency’s fact-finding regarding the timeliness of his asylum

3 application, see 8 U.S.C. § 1158(a)(3), and we lack

4 jurisdiction to review the agency’s denial of CAT relief

5 because Liu did not challenge the denial of that relief

6 before the BIA. See 8 U.S.C. § 1252(d)(1); Karaj v.

7 Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).

8 Liu’s challenges to the agency’s denial of withholding

9 of removal are without merit. As an initial matter, Liu

10 argues that he was eligible for withholding of removal

11 because he demonstrated “other resistance” to China’s family

12 planning policy under Shi Liang Lin v. U.S. Dep’t of

13 Justice, 494 F.3d 296 (2d Cir. 2007) (en banc). This issue

14 was not raised before the BIA, and will not be considered

15 here. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,

16 119-20 (2d Cir. 2007).

17 As to the claim based on prosecution for membership in

18 an underground church, Liu challenges the adverse

19 credibility finding. For applications governed by the REAL

20 ID Act, such as Liu’s, the agency may base a credibility

21 finding on an applicant’s demeanor, the plausibility of his

22 account, or inconsistencies in his statements, without

3
1 regard to whether they go “to the heart of the applicant’s

2 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Substantial evidence

3 supports the agency’s adverse credibility determination.

4 Liu contends that the IJ and BIA placed too much weight

5 on his hesitancy in answering questions. Liu argued that it

6 can be explained by his lack of experience testifying in

7 court or through a translator. However, we defer to the

8 IJ’s assessment of Liu’s demeanor because the IJ had “the

9 unique advantage . . . of having heard directly from [him].” 

10 See Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir.

11 2005)(citation omitted).

12 The IJ properly relied on the sketchiness of the asylum

13 application; however an IJ may rely on omissions in making a

14 credibility determination. See Xiu Xia Lin v. Mukasey, 534

15 F.3d 162, 166 n.3 (2d Cir. 2008). The BIA also relied on

16 the issuance of a Chinese passport to Liu in the United

17 States; however we defer to the factfinder’s inference that

18 the Chinese government would likely not issue a passport to

19 a wanted fugitive. See Siewe v. Gonzales, 480 F.3d 160,

20 167-68 (2d Cir. 2007).

21 Liu cites background evidence demonstrating the

22 persecution of some Christians in China to corroborate his

4
1 testimony. However, nothing suggests that the agency did

2 not take into account this evidence, see Xiao Ji Chen, 471

3 F.3d 315, 337 n.17 (2d Cir. 2006)(presuming that the agency

4 “has taken into account all of the evidence before [it],

5 unless the record compellingly suggests otherwise”); and the

6 persecution of some Christians in China would not rebut the

7 finding that Liu’s testimony did not credibly establish that

8 he would be subjected to such persecution. In sum, the

9 agency’s adverse credibility determination is supported by

10 substantial evidence and supports its denial of Liu’s

11 application for withholding of removal based on his status

12 as a Christian.

13 For the foregoing reasons, the petition for review is

14 DISMISSED in part and DENIED in part. As we have completed

15 our review, the pending motion for a stay of removal in this

16 petition is DISMISSED as moot. 

17

18 FOR THE COURT: 

19 Catherine O’Hagan Wolfe, Clerk

5