10-922-ag

Lian v. Holder

BIA

Mulligan, IJ

A099 939 092

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 for the Second Circuit, held at the

2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the 23rd 3 day of February, two thousand eleven.

4

5 PRESENT:

6 JOSÉ A. CABRANES,

7 GERARD E. LYNCH,

8 DENNY CHIN,

9 Circuit Judges. 

10 _______________________________________

11

12 QIN LIAN,

13 Petitioner, 14

15 v. 10-922-ag

16 NAC 

17 ERIC H. HOLDER, JR., UNITED STATES 

18 ATTORNEY GENERAL,

19 Respondent.

20 ______________________________________

21

22 FOR PETITIONER: Lee Ratner, Law Offices of Michael Brown, New York, New

23 York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney General; John C. Cunningham,

26 Senior Litigation Counsel; Claire L. Workman, Trial Attorney,

27 Office of Immigration Litigation, Civil Division, U.S. Department

28 of Justice, Washington, D.C.

29

30 UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

31 Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the
2

1 petition for review is DENIED.

2 Petitioner, Qin Lian, a native and citizen of the People’s Republic of China, seeks review

3 of a February 22, 2010, decision of the BIA affirming the April 7, 2008, decision of Immigration

4 Judge (“IJ”) Thomas Mulligan denying her application for asylum, withholding of removal, and

5 relief under the Convention Against Torture (“CAT”). In re Qin Lian, No. A099 939 092 (B.I.A.

6 Feb. 22, 2010), aff’g No. A099 939 092 (Immig. Ct. N.Y. City Apr. 7, 2008). We assume the

7 parties’ familiarity with the underlying facts and procedural history of the case.

8 Under the circumstances of this case, we review both the IJ’s and the BIA’s opinions “for

9 the sake of completeness.” Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528 (2d

10 Cir. 2006). “Where the BIA adopts an IJ’s decision, we review the IJ’s factual findings,

11 including adverse credibility determinations, under the substantial evidence standard, treating

12 them as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the

13 contrary.’” Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008), quoting 8 U.S.C. 

14 § 1252(b)(4)(B). We review questions of law and the application of law to undisputed fact de

15 novo. See Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). Pursuant to the REAL ID Act,

16 which governs this case, an adverse credibility determination may be based on an asylum

17 applicant’s demeanor, the plausibility of his or her account, inconsistencies in his or her

18 statements, and the consistency of such statements with other evidence, without regard to

19 whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). 

20 The IJ reasonably found Lian not credible because of inconsistency between her

21 testimony and that of her witness, and because of her demeanor at the hearing. With respect to

22 inconsistency, the IJ noted that Lian testified that the witness had taken the photographs she
3

1 submitted to demonstrate her practice of Falun Gong, while the witness testified that he had not. 

2 With respect to demeanor, the IJ found that (1) although Lian appeared “basically fine” on direct

3 examination, she “fell apart” during the government’s cross-examination; (2) at various points

4 she would look up at the ceiling “as if in a panic in response to various questions”; and (3) the

5 pauses in her testimony before answering were “beyond what one would expect” from an alien in

6 immigration proceedings asked similar questions. 

7 Lian does not challenge the finding of inconsistency, which in itself stands as a valid

8 basis for the IJ’s adverse credibility determination. See Shunfu Li v. Mukasey, 529 F.3d 141,

9 146-47 (2d Cir. 2008); see also 8 U.S.C. § 1158(b)(1)(B)(iii). As for the demeanor finding,

10 assuming without deciding that Lian adequately challenged the IJ’s adverse credibility

11 determination before the BIA, her arguments are without merit. Lian’s assertion that the IJ’s

12 finding that she looked up at the ceiling at “various points” was erroneous is unavailing; the

13 record contains at least two occasions on which the IJ contemporaneously noted Lian’s looking

14 at the ceiling, and in any event we defer to the demeanor observations of the IJ, Tu Lin v.

15 Gonzales, 446 F.3d 395, 401 (2d Cir. 2006), whether he notes them for the record at the time or

16 at the conclusion of the hearing. Lian’s contention that the pauses in her testimony were natural

17 responses to “complex questions” are no more persuasive, as a reasonable factfinder would not

18 be compelled to credit this explanation. “[W]here the evidence would support either of

19 competing inferences, the fact that this Court might have drawn one inference does not entitle it

20 to overturn the trial court’s choice of the other.” Healey v. Chelsea Res., Ltd., 947 F.2d 611, 618

21 (2d Cir. 1991). See also Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005); Siewe v.

22 Gonzales, 480 F.3d 160, 167-168 (2d Cir. 2007).
4

1

2 Given the totality of the circumstances, substantial evidence supports the IJ’s adverse

3 credibility determination. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)

4 (finding that this Court “defer[s] to an IJ’s credibility determination unless, from the totality of

5 the circumstances, it is plain that no reasonable fact-finder could make such an adverse

6 credibility ruling.”). Therefore, the IJ properly denied Lian’s applications for asylum,

7 withholding of removal, and CAT relief because the only evidence that Lian would be

8 persecuted or tortured depended on her credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d

9 Cir. 2006).

10 For the foregoing reasons, the petition for review is DENIED. As we have completed our

11 review, any stay of removal that the Court previously granted in this petition is VACATED, and

12 any pending motion for a stay of removal in this petition is DISMISSED as moot.

13 FOR THE COURT:

14 Catherine O’Hagan Wolfe, Clerk

15

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