13-3986

Liu v. Barr

BIA

Videla, IJ

A098 472 361

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 

for the Second Circuit, held at the Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 17th day of July, two thousand twenty.

PRESENT:

REENA RAGGI,

PETER W. HALL,

DEBRA ANN LIVINGSTON,

Circuit Judges.

_____________________________________

MINGJIN LIU,

Petitioner,

v. 13-3986

NAC

WILLIAM P. BARR, UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Gary J. Yerman, Esq., New York, 

NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

General; Shelley R. Goad, 

Assistant Director; Carmel A. 

Morgan, Trial Attorney, Office of 

Immigration Litigation, United 

States Department of Justice, 

Washington, DC.
2

UPON DUE CONSIDERATION of this petition for review of a 

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

ORDERED, ADJUDGED, AND DECREED that the petition for review 

is DENIED.

Petitioner Mingjin Liu, a native and citizen of the 

People’s Republic of China, seeks review of a September 30, 

2013 decision of the BIA affirming an April 24, 2012 decision 

of an Immigration Judge (“IJ”) denying Liu’s application for 

asylum, withholding of removal, and relief under the 

Convention Against Torture (“CAT”). In re Mingjin Liu, No. 

A 098 472 361 (B.I.A. Sept. 30, 2013), aff’g No. A 098 472 361

(Immig. Ct. N.Y. City Apr. 24, 2012). We assume the parties’ 

familiarity with the underlying facts and procedural history 

in this case.

We have reviewed the decisions of both the IJ and the 

BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d 

Cir. 2005). We review adverse credibility determinations for 

substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei 

Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “Considering 

the totality of the circumstances, and all relevant factors, 

a trier of fact may base a credibility determination on the 

demeanor, candor, or responsiveness of the applicant . . . ,

the consistency between the applicant’s . . . written and 
3

oral statements . . . , the internal consistency of each such 

statement, [and] the consistency of such statements with 

other evidence of record . . . , without regard to whether an 

inconsistency, inaccuracy, or falsehood goes to the heart of 

the applicant’s claim . . . .” 8 U.S.C. § 1158(b)(1)(B)(iii). 

“We defer . . . to an IJ’s credibility determination unless, 

from the totality of the circumstances, it is plain that no 

reasonable fact-finder could make such an adverse credibility 

ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 

2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial 

evidence supports the agency’s determination that Liu was not 

credible as to his claim that he was persecuted because of 

his opposition to and violation of Chinese family planning 

laws.

The agency reasonably relied in part on Liu’s demeanor, 

finding that parts of his testimony were evasive and not 

responsive to the questions posed. We give particular 

deference to the trier of fact’s assessment of demeanor. See 

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

the record supports the IJ’s demeanor finding. For example, 

the IJ asked Liu numerous times why he testified that he 

worked in odd jobs from 1999 until he left China in 2005, 

while his asylum application reported that he worked for a 
4

construction company from May 2000 until December 2004 and 

did not work after that. Liu did not answer the question, 

asserting instead that he did individual work and did not 

work for a construction company. Liu argues that he 

attempted to explain the irregularity of his employment and 

the IJ became frustrated and found his explanation lacking;

however, the IJ clarified that he understood Liu’s job 

description, but was asking why Liu’s testimony was 

inconsistent with his asylum application. Liu never 

explained the inconsistency. In addition, despite multiple 

questions, Liu never gave a direct answer as to whether he 

lied during a visa interview. Contrary to Liu’s argument, a 

demeanor finding does not have to be linked to inconsistent 

testimony. See id.

The agency also reasonably relied on substantial 

inconsistencies between Liu’s application and testimony 

concerning his alleged detention and beating by Chinese 

family planning authorities. His application states that he 

was locked in a room at work, beaten and wounded on his upper 

lip, and released back to work after he revealed his wife’s 

location. In contrast, he testified that he was detained for 

twenty days and beaten with electric batons on his head, leg, 

and lip to the point that he passed out. While “asylum 
5

applicants are not required to list every incident of 

persecution” in their application, Pavlova v. INS, 441 F.3d 

82, 90 (2d Cir. 2006), the length of the detention and 

severity of a beating with an electric baton are facts that 

Liu “would reasonably have been expected to disclose,” Hong 

Fei Gao, 891 F.3d at 78; see also Xiu Xia Lin, 534 F.3d at 

167 (holding that petitioner’s failure to include the length 

of her detention in her asylum application was, inter alia,

a proper basis for the IJ’s adverse credibility 

determination). And the agency was not required to credit 

Liu’s supplemental affidavit explaining this inconsistency 

because he never mentioned that explanation during the 

hearing. See Majidi, 430 F.3d at 80 (“A petitioner must do 

more than offer a plausible explanation for his inconsistent 

statements to secure relief; he must demonstrate that a 

reasonable fact-finder would be compelled to credit his 

testimony.” (internal quotation marks omitted)).

Liu’s testimony regarding the date he was fired from his 

job, although tangential, bolsters the adverse credibility 

determination. See Xiu Xia Lin, 534 F.3d at 167 (“[A]n IJ 

may rely on any inconsistency or omission in making an adverse 

credibility determination as long as the ‘totality of the 

circumstances’ establishes that an asylum applicant is not 
6

credible.” (quoting 8 U.S.C. S 1158(b)(1)(B)(iii))). And 

having questioned Liu’s credibility, the agency reasonably 

found that Liu failed to rehabilitate his testimony with 

corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d 

268, 273 (2d Cir. 2007). Liu submitted statements from his 

wife and her colleague in China recounting her forced 

abortion, and a letter from his girlfriend stating that the 

family planning authorities were still looking for him. The 

agency reasonably afforded these documents diminished weight 

because the authors were interested witnesses and unavailable 

for cross-examination. See Y.C. v. Holder, 741 F.3d 324, 334 

(2d Cir. 2013) (deferring to agency’s decision to afford 

little weight to relative’s letter from China because it was 

unsworn and from an interested witness); Xiao Ji Chen v. U.S. 

Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (noting 

that determinations concerning the weight of evidence lie 

largely within the discretion of the agency). Given the

demeanor and inconsistency findings and the lack of reliable

corroboration, the agency’s adverse credibility determination 

is supported by substantial evidence and is dispositive of 

asylum, withholding of removal, and CAT relief because all 

three forms of relief relied on the same factual predicate. 

See 8 U.S.C. § 1158(b)(1)(B)(iii); Paul v. Gonzales, 444 F.3d 
7

148, 155–57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is 

DENIED. All pending motions and applications are DENIED and 

stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court