11-5382 Liu v. Holder BIA Vomacka, IJ A089 224 910 

### 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**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 26 th** **day of March, two thousand thirteen.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **JOSÉ A. CABRANES,** 8 **RICHARD C. WESLEY,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **XING LIU,** 13 Petitioner**,** 14 15 **v. 11-5382** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**______________________________________** 21 22 **FOR PETITIONER: Andy Wong, New York, New York.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 25 **Attorney General; Melissa Neiman** 26 **Kelting, Senior Litigation Counsel;** 27 **Anthony J. Messuri, Trial Attorney,** 28 **Office of Immigration Litigation,** 29**Civil Division, United States** 1 **Department of Justice, Washington,** 2 **D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Xing Liu, a native and citizen of China, 9 seeks review of a November 30, 2011, decision of the BIA, 10 affirming the February 23, 2010, decision of Immigration 11 Judge (“IJ”) Alan A. Vomacka, denying his application for 12 asylum, withholding of removal, and relief under the 13 Convention Against Torture (“CAT”). In re Xing Liu , No. 14 A089 224 910 (B.I.A. Nov. 30, 2011), aff’gNo. A089 224 910 15 (Immig. Ct. N.Y. City Feb. 23, 2010). We assume the 16 parties’ familiarity with the underlying facts and 17 procedural history in this case. 18 Under the circumstances of this case, we have reviewed 19 the IJ’s decision as modified by the BIA, i.e. , minus the 20 one inconsistency finding that the BIA rejected. See Xue 21 Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 520, 522 (2d 22 Cir. 2005). The applicable standards of review are 23 well-established. See 8 U.S.C. § 1252(b)(4)(B);Xiu Xia Lin 24 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 25

2For asylum applications governed by the REAL ID Act, 1 such as the application in this case, the agency may, 2 considering the totality of the circumstances, base a 3 credibility finding on an asylum applicant’s demeanor, the 4 plausibility of his account, and inconsistencies in his 5 statements, without regard to whether they go “to the heart 6 of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). 7 Assuming, arguendo , as the BIA did, that Liu’s asylum 8 application was timely filed, substantial evidence supports 9 the agency’s adverse credibility determination and that 10 determination formed an adequate basis for denying relief. 11 The IJ reasonably concluded that Liu’s testimony was 12 undermined by his admission that he lied to immigration 13 officials to obtain a visa to enter the United States 14 because it indicated a willingness to lie to remain in the 15 country. See Siewe v. Gonzales , 480 F.3d 160, 170 (2d Cir. 16 2007). The IJ also did not err in finding implausible Liu’s 17 testimony related to government officials’ finding his wife 18 in hiding, discovering his involvement with the Liberty 19 Democracy Party, and issuing him a passport. See 8 U.S.C. 20 § 1158(b)(1)(B)(iii); see also Wensheng Yan v. Mukasey, 509 21 F.3d 63, 66-68 (2d Cir. 2007) (per curiam). 22

3The record further supports the IJ’s findings that Liu 1 made inconsistent statements regarding the dates of his 2 wife’s pregnancy, abortion, and intra-uterine device 3 procedure. Although a discrepancy in dates need not be 4 fatal if “minor and isolated” and the applicant’s testimony 5 is otherwise generally consistent, rational, and believable, 6 see Moussa Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000), 7 the IJ here recognized that these discrepancies might have 8 been misstatements, but nevertheless reasonably found them 9 significant when considered in conjunction with the other 10 issues related to credibility. See Xiu Xia Lin, 534 F.3d at 11 167 (recognizing that “an IJ may rely on any inconsistency 12 or omission in making an adverse credibility determination 13 as long as the ‘totality of the circumstances’ establishes 14 that an asylum applicant is not credible” (quoting 8 U.S.C. 15 § 1158(b)(1)(B)(iii))). Furthermore, contrary to Liu’s 16 contention, the record does not reveal that these 17 discrepancies were caused by translation errors, as the IJ 18 specifically ensured that the translation was correct. See 19 Majidi v. Gonzales , 430 F.3d 77, 80 (2d Cir. 2005). 20

21

22

4Finally, having questioned Liu’s credibility, the 1 agency reasonably relied further on his failure to provide 2 reliable corroborating evidence. See Biao Yang v. Gonzales , 3 496 F.3d 268, 273 (2d Cir. 2007). An applicant’s failure to 4 corroborate testimony may bear on credibility, either 5 because the absence of particular corroborating evidence is 6 viewed as suspicious, or because the absence of 7 corroboration in general makes an applicant unable to 8 rehabilitate testimony that has already been called into 9 question. Id.Given this lack of corroboration, as well as 10 the false statement, implausible testimony, and 11 inconsistencies, the agency’s adverse credibility 12 determination is supported by substantial evidence. See Xiu 13 Xia Lin, 534 F.3d at 167. Accordingly, the agency did not 14 err in denying asylum, withholding of removal, and CAT 15 relief.See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 16 2006). 17 For the foregoing reasons, the petition for review is 18 DENIED. As we have completed our review, any stay of 19 removal that the Court previously granted in this petition 20 is VACATED, and any pending motion for a stay of removal in 21 this petition is DISMISSED as moot. Any pending request for 22

5oral argument in this petition is DENIED in accordance with 1 Federal Rule of Appellate Procedure 34(a)(2), and Second 2 Circuit Local Rule 34.1(b). 3

FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5 6

6