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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 26th 4 day of March, two thousand thirteen.

5

6 PRESENT:

7 GUIDO CALABRESI,

8 JOSÉ A. CABRANES,

9 RICHARD C. WESLEY,

10 Circuit Judges. 

11 _______________________________________

12

13 XING LIU,

14 Petitioner,

15

16 v. 11-5382

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 ______________________________________

22

23 FOR PETITIONER: Andy Wong, New York, New York.

24

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

26 Attorney General; Melissa Neiman27 Kelting, Senior Litigation Counsel;

28 Anthony J. Messuri, Trial Attorney,

29 Office of Immigration Litigation,
1 Civil Division, United States

2 Department of Justice, Washington,

3 D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 is DENIED.

9 Petitioner Xing Liu, a native and citizen of China,

10 seeks review of a November 30, 2011, decision of the BIA,

11 affirming the February 23, 2010, decision of Immigration

12 Judge (“IJ”) Alan A. Vomacka, denying his application for

13 asylum, withholding of removal, and relief under the

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

15 A089 224 910 (B.I.A. Nov. 30, 2011), aff’g No. A089 224 910

16 (Immig. Ct. N.Y. City Feb. 23, 2010). We assume the

17 parties’ familiarity with the underlying facts and

18 procedural history in this case.

19 Under the circumstances of this case, we have reviewed

20 the IJ’s decision as modified by the BIA, i.e., minus the

21 one inconsistency finding that the BIA rejected. See Xue

22 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

23 Cir. 2005). The applicable standards of review are

24 well-established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin

25 v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). 

2
1 For asylum applications governed by the REAL ID Act,

2 such as the application in this case, the agency may,

3 considering the totality of the circumstances, base a

4 credibility finding on an asylum applicant’s demeanor, the

5 plausibility of his account, and inconsistencies in his

6 statements, without regard to whether they go “to the heart

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

8 Assuming, arguendo, as the BIA did, that Liu’s asylum

9 application was timely filed, substantial evidence supports

10 the agency’s adverse credibility determination and that

11 determination formed an adequate basis for denying relief. 

12 The IJ reasonably concluded that Liu’s testimony was

13 undermined by his admission that he lied to immigration

14 officials to obtain a visa to enter the United States

15 because it indicated a willingness to lie to remain in the

16 country. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.

17 2007). The IJ also did not err in finding implausible Liu’s

18 testimony related to government officials’ finding his wife

19 in hiding, discovering his involvement with the Liberty

20 Democracy Party, and issuing him a passport. See 8 U.S.C.

21 § 1158(b)(1)(B)(iii); see also Wensheng Yan v. Mukasey, 509

22 F.3d 63, 66-68 (2d Cir. 2007) (per curiam). 

3
1 The record further supports the IJ’s findings that Liu

2 made inconsistent statements regarding the dates of his

3 wife’s pregnancy, abortion, and intra-uterine device

4 procedure. Although a discrepancy in dates need not be

5 fatal if “minor and isolated” and the applicant’s testimony

6 is otherwise generally consistent, rational, and believable,

7 see Moussa Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000),

8 the IJ here recognized that these discrepancies might have

9 been misstatements, but nevertheless reasonably found them

10 significant when considered in conjunction with the other

11 issues related to credibility. See Xiu Xia Lin, 534 F.3d at

12 167 (recognizing that “an IJ may rely on any inconsistency

13 or omission in making an adverse credibility determination

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

15 that an asylum applicant is not credible” (quoting 8 U.S.C.

16 § 1158(b)(1)(B)(iii))). Furthermore, contrary to Liu’s

17 contention, the record does not reveal that these

18 discrepancies were caused by translation errors, as the IJ

19 specifically ensured that the translation was correct. See

20 Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005).

21

22

4
1 Finally, having questioned Liu’s credibility, the

2 agency reasonably relied further on his failure to provide

3 reliable corroborating evidence. See Biao Yang v. Gonzales,

4 496 F.3d 268, 273 (2d Cir. 2007). An applicant’s failure to

5 corroborate testimony may bear on credibility, either

6 because the absence of particular corroborating evidence is

7 viewed as suspicious, or because the absence of

8 corroboration in general makes an applicant unable to

9 rehabilitate testimony that has already been called into

10 question. Id. Given this lack of corroboration, as well as

11 the false statement, implausible testimony, and

12 inconsistencies, the agency’s adverse credibility

13 determination is supported by substantial evidence. See Xiu

14 Xia Lin, 534 F.3d at 167. Accordingly, the agency did not

15 err in denying asylum, withholding of removal, and CAT

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

17 2006).

18 For the foregoing reasons, the petition for review is

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

20 removal that the Court previously granted in this petition

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

22 this petition is DISMISSED as moot. Any pending request for

5
1 oral argument in this petition is DENIED in accordance with

2 Federal Rule of Appellate Procedure 34(a)(2), and Second

3 Circuit Local Rule 34.1(b).

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk

6

6