16-3936 Liu v. Whitaker BIA Loprest, IJ A206 053 323 

### 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 TO 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** 2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 24 th**  **day of January, two thousand nineteen.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **JOSÉ A. CABRANES,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **PINGPING LIU,** 13 Petitioner **,** 14 15 **v. 16-3936** 16 **NAC** 17 **MATTHEW WHITAKER, ACTING** 18 **UNITED STATES ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER:** Theodore N. Cox, Esq., New York, NY. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General; Derek C. Julius, 26 Assistant Director; Anthony O. 27 Pottinger, Trial Attorney, Office 28 of Immigration Litigation, United 29 States Department of Justice, 30 Washington, DC. 312 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 Pingping Liu, a native and citizen of the 5 People’s Republic of China, seeks review of a November 7, 6 2016, decision of the BIA affirming an April 14, 2016, 7 decision of an Immigration Judge (“IJ”) denying asylum, 8 withholding of removal, and relief under the Convention 9 Against Torture (“CAT”). In re Pingping Liu, No. A206 053 10 323 (B.I.A. Nov. 7, 2016), aff’g No. A206 053 323 (Immig. Ct. 11 N.Y. City Apr. 14, 2016). We assume the parties’ familiarity 12 with the underlying facts and procedural history in this case. 13 Under the circumstances of this case, we have reviewed 14 both the IJ’s and the BIA’s opinions “for the sake of 15 completeness.” Wangchuck v. Dep’t of Homeland Security , 448 16 F.3d 524, 528 (2d Cir. 2006). The applicable standards of 17 review are well established. See 8 U.S.C. § 1252(b)(4)(B); 18 Xiu Xia Lin v. Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008). 19 “Considering the totality of the circumstances, and all 20 relevant factors, a trier of fact may base a credibility 21 determination on the demeanor, candor, or responsiveness of 223 the applicant or witness, the inherent plausibility of the 1 applicant’s or witness’s account, the consistency between the 2 applicant’s or witness’s written and oral statements . . . , 3 and the internal consistency of each such statement . . . 4 without regard to whether an inconsistency, inaccuracy, or 5 falsehood goes to the heart of the applicant’s claim.” 6 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin , 534 F.3d 7 at 163-64. Substantial evidence supports the agency’s 8 determination that Liu was not credible as to her claim that 9 family planning officials forcibly terminated her pregnancy. 10 The agency reasonably relied in part on Liu’s demeanor. 11
See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales , 430 12 F.3d 77, 81 n.1 (2d Cir. 2005) (recognizing that particular 13 deference is given to the trier of fact’s assessment of 14 demeanor). That finding is supported by the record, which 15 reflects that Liu became hesitant and less responsive on 16 cross-examination thus giving the impression that she sought 17 time to formulate answers rather than testified from memory. 18 The demeanor finding and the overall credibility 19 determination are bolstered by record inconsistencies. See 20 Li Hua Lin v. U.S. Dep’t of Justice , 453 F.3d 99, 109 (2d 21 Cir. 2006). The agency reasonably found that Liu’s 224 testimony that she was hospitalized for three days and 1 homebound for one month after suffering a uterine infection 2 as a result of her abortion was inconsistent with 3 statements from her mother and husband who did not mention 4 that Liu was hospitalized or homebound despite describing 5 in detail her other post-abortion issues. See 8 U.S.C. 6 § 1158(b)(1)(B)(iii); see also Hong Fei Gao v. Sessions , 7 891 F.3d 67, 78 (2d Cir. 2018) (“[T]he probative value of a 8 witness’s . . . silence on particular facts depends on 9 whether those facts are ones the witness would reasonably 10 have been expected to disclose.”). The agency also 11 reasonably found that Liu changed her description of the 12 nature of her family planning violation from serious to 13 less serious depending on the nature of the questions posed 14 in an effort to bolster her claim. See 8 U.S.C. 15 § 1158(b)(1)(B)(iii). 16 There is no merit to Liu’s argument that the IJ failed 17 to make her sufficiently aware of the inconsistencies in the 18 record or the potential credibility issues in her case, given 19 that the Government questioned Liu about the different 20 descriptions of her post-abortion medical treatment and the 21 IJ repeatedly noted the Government’s issues with her 225 credibility. Further, she has not proffered any explanations 1 for the record inconsistencies. See Majidi , 430 F.3d at 80 2 (“A petitioner must do more than offer a plausible explanation 3 for his inconsistent statements to secure relief; he must 4 demonstrate that a reasonable fact-finder would be compelled 5 to credit his testimony.” (internal quotation marks 6 omitted)). 7 The agency also reasonably found Liu’s credibility as to 8 the involuntary nature of her abortion undermined by her 9 submission of an abortion certificate and a family planning 10 decision ordering her punished with an abortion and fine. We 11 have held that the agency does not err in determining that 12 the submission of an “abortion certificate” from China 13 undermines credibility about an assertedly involuntary 14 abortion because the State Department has reported that China 15 issues “abortion certificates” for voluntary abortions, not 16 forced abortions, so that the individuals who have undergone 17 voluntary abortions may obtain leave from work. See Xiao 18 Xing Ni v. Gonzales , 494 F.3d 260, 263 (2d Cir. 2007); Tu Lin 19 v. Gonzales , 446 F.3d 395, 400 (2d Cir. 2006). Similarly, 20 given that country conditions evidence in the record suggests 21 that the use of force is prohibited under the family planning 226 policy and that government o fficials deny using involuntary 1 abortions as a punishment under the policy, the agency did 2 not err in finding it implausible that the Chinese government 3 would issue a decision ordering Liu punished with an abortion. 4 Her submission of such a document therefore impugned her 5 credibility. See Wensheng Yan v. Mukasey , 509 F.3d 63, 66- 6 68 (2d Cir. 2007) (recognizing that adverse credibility 7 determination may be based on inherent implausibility in 8 applicant’s story if the “finding is tethered to record 9 evidence” or based on common sense). 10 Having questioned Liu’s credibility, the agency 11 reasonably relied further on her failure to rehabilitate 12 her testimony with reliable corroborating evidence. “An 13 applicant’s failure to corroborate . . . her testimony may 14 bear on credibility, because the absence of corroboration 15 in general makes an applicant unable to rehabilitate 16 testimony that has already been called into question.” 17 Biao Yang v. Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). 18 The IJ reasonably declined to afford weight to the unsworn 19 letter from Liu’s mother in China. See Y.C. v. Holder , 741 20 F.3d 324, 334 (2d Cir. 2013) (deferring to agency’s 21 decision to afford little weight to husband’s letter 227 because it was unsworn and from an interested witness). 1 And, as discussed above, Liu’s abortion certificate and 2 punishment decision impugned rather than rehabilitated her 3 claim of an involuntary abortion. Although the parties 4 stipulated that Liu’s husband would testify in conformity 5 with his affidavit and letter, the agency was not compelled 6 to conclude that his statements alone would be sufficient 7 to rehabilitate Liu’s claim that she was forced to have an 8 abortion given that he was not a first-hand witness and, as 9 discussed above, his letter omitted that Liu was 10 hospitalized and homebound from a post-abortion infection. 11 See Biao Yang , 496 F.3d at 273. 12 Given the demeanor, inconsistency, implausibility, and 13 corroboration findings, the agency’s adverse credibility 14 determination is supported by substantial evidence and is 15 dispositive of asylum, withholding of removal, and CAT 16 relief.* See Paul v. Gonzales , 444 F.3d 148, 156-57 (2d 17 Cir. 2006). 18

* Contrary to the BIA’s conclusion, Liu did not waive his claims for withholding of removal and CAT relief. The IJ denied those claims because Liu failed to testify credibly; thus Liu’s challenge to the adverse credibility determination on appeal to the BIA necessarily included a challenge to the denial of withholding and CAT relief.8 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our rev iew, any stay of removal 2 that the Court previously granted in this petition is VACATED, 3 and any pending motion for a stay of removal in this petition 4 is DISMISSED as moot. Any pending request for oral argument 5 in this petition is DENIED in accordance with Federal Rule of 6 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 7 34.1(b). 8
FOR THE COURT: 9 Catherine O’Hagan Wolfe 10 Clerk of Court 11