09-4670-ag

Lian v. Holder

BIA

Van Wyke, IJ

A099 025 415

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 8th 4 day of February, two thousand eleven.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 ROBERT D. SACK,

9 GERARD E. LYNCH,

10 Circuit Judges. 

11 _______________________________________

12

13 Zhi Xin Lian,

14 Petitioner, 15

16 v. 09-4670-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL

20 Respondent. 21 ______________________________________ 22

23 FOR PETITIONER: Sheema Chaudhry, Law Offices of Michael

24 Brown, New York, New York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney General;

27 Richard M. Evans, Assistant Director;

28 Sharon M. Clay, Trial Attorney, Office of

29 Immigration Litigation, Civil Division,

30 United States Department of Justice,
2

1 Washington, D.C.

2 UPON DUE CONSIDERATION of this petition for review of a

3 Board of Immigration Appeals (“BIA”) decision, it is hereby

4 ORDERED, ADJUDGED, AND DECREED that the petition for review

5 is DENIED.

6 Petitioner Zhi Xin Lian, a native and citizen of China,

7 seeks review of an October 15, 2009, order of the BIA

8 affirming the October 17, 2007, decision of Immigration

9 Judge (“IJ”) William Van Wyke denying Lian’s application for

10 asylum, withholding of removal, and relief under the

11 Convention Against Torture (“CAT”). In re Zhi Xin Lian, No.

12 A099 025 415 (B.I.A. Oct. 15, 2009), aff’g No. A099 025 415

13 (Immig. Ct. N.Y. City Oct. 17, 2007). We assume the

14 parties’ familiarity with the underlying facts and

15 procedural history in this case.

16 Under the circumstances of this case, we review the

17 IJ’s decision as supplemented by the BIA’s decision. See

18 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We

19 affirm the agency’s factual findings, including its

20 credibility determinations, if they are supported by

21 substantial evidence. See Ascencio-Rodriguez v. Holder, 595

22 F.3d 105, 110 (2d Cir. 2010). 

23 Substantial evidence supports the agency’s adverse
3

1 credibility determination. See Yanquin Weng, 562 F.3d at

2 513. Under the REAL ID Act, which applies to Liu’s

3 application for relief, “an IJ may rely on any inconsistency

4 or omission in making an adverse credibility determination

5 as long as the ‘totality of the circumstances’ establishes

6 that an asylum applicant is not credible.” Xiu Xia Lin v.

7 Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (emphasis in

8 original).

9 Here, the IJ noted the discrepancy between Lian's

10 statements during his initial airport credible fear

11 interviews, in which he stated that he feared persecution

12 under China’s family planning policy, and his asylum

13 application and testimony before the IJ, in which he

14 asserted that he feared persecution as a Falun Gong

15 practitioner. The IJ reasonably relied on this

16 inconsistency, as there has been no showing that the airport

17 interview was so unreliable that it should not be considered

18 part of the record, see Ramsameachire v. Ashcroft, 357 F.3d

19 169, 180 (2d Cir. 2004), and the inconsistency is dramatic,

20 see id. at 180-81 (“Where the alien’s airport statements and

21 his or her later testimony present materially different

22 accounts of his or her purported persecution, however, the
4

1 inconsistencies may render the alien’s testimony

2 incredible.”).

3 The IJ also noted inconsistencies between the testimony

4 of Lian’s witness, Yuan, and Lian’s own testimony, and found

5 that those inconsistencies adversely affected Lian’s

6 credibility. Lian concedes that there were inconsistencies,

7 but argues that the IJ erred in relying on them because the

8 inconsistencies were minor. However, an IJ may “rely on any

9 inconsistency . . . as long as the ‘totality of the

10 circumstances’ establishes that an asylum applicant is not

11 credible.” Xiu Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C.

12 § 1158(b)(1)(B)(iii)) (emphasis in original). Thus, the

13 inconsistencies between Yuan’s testimony and Lian’s

14 testimony were properly considered in evaluating Lian's

15 credibility as part of the totality of the circumstances.

16 Finally, the IJ found that Liu’s credibility was

17 undermined by his demeanor, which the IJ described as

18 “hesitant,” unemotional, and weak, such that his testimony

19 “sounded contrived.” We defer to the IJ on this assessment,

20 see Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir. 2005),

21 mindful of his unique advantage in hearing directly from the

22 asylum applicant, see Zhou Yun Zhang v. INS, 386 F.3d 66, 73
5

1 (2d Cir. 2004), overruled on other grounds by Shi Liang Lin

2 v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007) (en

3 banc).

4 Ultimately, the discrepancies the IJ identified and his

5 assessment of Lian’s demeanor provide substantial evidence

6 for his adverse credibility determination. See 8 U.S.C. 

7 § 1158(b)(1)(B)(iii). Because Lian’s claims for asylum,

8 withholding of removal, and relief under the CAT were based

9 on the same factual predicate, the agency’s adverse

10 credibility determination forecloses all three forms of

11 relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

12 2006).

13 For the foregoing reasons, the petition for review is

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

15 removal that the Court previously granted in this petition

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

17 this petition is DISMISSED as moot. 

18 FOR THE COURT: 

19 Catherine O’Hagan Wolfe, Clerk