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. At a stated term of the United States Court of Appeals for the Second Circuit, held at the 1 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, 2 on the 23 rdday of February, two thousand eleven. 3 4 PRESENT: 5 JOSÉ A. CABRANES, 6 GERARD E. LYNCH, 7 DENNY CHIN, 8 Circuit Judges

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_______________________________________ 10 11 QIN LIAN, 12 Petitioner, 13 14 v. 10-922-ag 15 NAC 16 ERIC H. HOLDER, JR., UNITED STATES 17 ATTORNEY GENERAL, 18 Respondent

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______________________________________ 20 21 FOR PETITIONER: Lee Ratner, Law Offices of Michael Brown, New York, New 22 York. 23 24 FOR RESPONDENT: Tony West, Assistant Attorney General; John C. Cunningham, 25 Senior Litigation Counsel; Claire L. Workman, Trial Attorney, 26 Office of Immigration Litigation, Civil Division, U.S. Department 27 of Justice, Washington, D.C. 28 29 UPON DUE CONSIDERATION of this petition for review of a Board of Immigration 30 Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the 31

### 2 petition for review is DENIED. 1 Petitioner, Qin Lian, a native and citizen of the People’s Republic of China, seeks review 2 of a February 22, 2010, decision of the BIA affirming the April 7, 2008, decision of Immigration 3 Judge (“IJ”) Thomas Mulligan denying her application for asylum, withholding of removal, and 4 relief under the Convention Against Torture (“CAT”). In re Qin Lian , No. A099 939 092 (B.I.A. 5 Feb. 22, 2010), aff’gNo. A099 939 092 (Immig. Ct. N.Y. City Apr. 7, 2008). We assume the 6 parties’ familiarity with the underlying facts and procedural history of the case. 7 Under the circumstances of this case, we review both the IJ’s and the BIA’s opinions “for 8 the sake of completeness.” Wangchuck v. Dep’t of Homeland Security , 448 F.3d 524, 528 (2d 9 Cir. 2006). “Where the BIA adopts an IJ’s d ecision, we review the IJ’s factual findings, 10 including adverse credibility determinations, under the substantial evidence standard, treating 11 them as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the 12 contrary.’” Corovic v. Mukasey , 519 F.3d 90, 95 (2d Cir. 2008), quoting 8 U.S.C. 13 § 1252(b)(4)(B). We review questions of law and the application of law to undisputed fact de 14
novo. SeeBah v. Mukasey , 529 F.3d 99, 110 (2d Cir. 2008). Pursuant to the REAL ID Act, 15 which governs this case, an adverse credibility determination may be based on an asylum 16 applicant’s demeanor, the plausibility of his or her account, inconsistencies in his or her 17 statements, and the consistency of such statements with other evidence, without regard to 18 whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). 19 The IJ reasonably found Lian not credible because of inconsistency between her 20 testimony and that of her witness, and because of her demeanor at the hearing. With respect to 21 inconsistency, the IJ noted that Lian testified that the witness had taken the photographs she 22

### 3 submitted to demonstrate her practice of Falun Gong, while the witness testified that he had not. 1 With respect to demeanor, the IJ found that (1) although Lian appeared “basically fine” on direct 2 examination, she “fell apart” during the government’s cross-examination; (2) at various points 3 she would look up at the ceiling “as if in a panic in response to various questions”; and (3) the 4 pauses in her testimony before answering were “beyond what one would expect” from an alien in 5 immigration proceedings asked similar questions. 6 Lian does not challenge the finding of inconsistency, which in itself stands as a valid 7 basis for the IJ’s adverse credibility determination. SeeShunfu Li v. Mukasey , 529 F.3d 141, 8 146-47 (2d Cir. 2008); see also8 U.S.C. § 1158(b)(1)(B)(iii). As for the demeanor finding, 9 assuming without deciding that Lian adequately challenged the IJ’s adverse credibility 10 determination before the BIA, her arguments are without merit. Lian’s assertion that the IJ’s 11 finding that she looked up at the ceiling at “various points” was erroneous is unavailing; the 12 record contains at least two occasions on whic h the IJ contemporaneously noted Lian’s looking 13 at the ceiling, and in any event we defer to the demeanor observations of the IJ, Tu Lin v. 14 Gonzales , 446 F.3d 395, 401 (2d Cir. 2006), whether he notes them for the record at the time or 15 at the conclusion of the hearing. Lian’s contention that the pauses in her testimony were natural 16 responses to “complex questions” are no more persuasive, as a reasonable factfinder would not 17 be compelled to credit this explanation. “[W]here the evidence would support either of 18 competing inferences, the fact that this Court might have drawn one inference does not entitle it 19 to overturn the trial court’s choice of the other.” Healey v. Chelsea Res., Ltd. , 947 F.2d 611, 618 20 (2d Cir. 1991). See alsoMajidi v. Gonzales , 430 F.3d 77, 80-81 (2d Cir. 2005); Siewe v. 21 Gonzales , 480 F.3d 160, 167-168 (2d Cir. 2007). 22

### 4 1 Given the totality of the circumstances, substantial evidence supports the IJ’s adverse 2 credibility determination. SeeXiu Xia Lin v. Mukasey , 534 F.3d 162, 167 (2d Cir. 2008) 3 (finding that this Court “defer[s] to an IJ’s credibility determination unless, from the totality of 4 the circumstances, it is plain that no reasonable fact-finder could make such an adverse 5 credibility ruling.”). Therefore, the IJ properly denied Lian’s applications for asylum, 6 withholding of removal, and CAT relief because the only evidence that Lian would be 7 persecuted or tortured depended on her credibility. SeePaul v. Gonzales , 444 F.3d 148, 156 (2d 8 Cir. 2006). 9 For the foregoing reasons, the petition for review is DENIED. As we have completed our 10 review, any stay of removal that the Court previously granted in this petition is VACATED, and 11 any pending motion for a stay of removal in this petition is DISMISSED as moot. 12
FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk 14 15 16