2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-17-2010

Dabin Liu v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3859

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3859

___________

DABIN LIU,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the 

Board of Immigration Appeals 

Immigration Judge: Honorable Annie S. Garcy

(Agency No. A094-048-585)

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 17, 2010

Before: SCIRICA, SMITH and WEIS, Circuit Judges

 (Opinion filed: June 17, 2010) 

___________

OPINION

___________

PER CURIAM.

Dabin Liu petitions for review of a final removal order entered by the Board

of Immigration Appeals (“BIA”). We will deny the petition.
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Liu, age twenty eight, is a native and citizen of China. In 2002, he

graduated from Sichuan University, and from 2003 to 2005 he studied library

management in Paris, France. In June 2005, rather than return to China, Liu entered the

United States on a tourist visa. He overstayed the visa and filed an I-589 application for

asylum in June 2006. In proceedings before an Immigration Judge (“IJ”), Liu conceded

removability for overstaying, and he pursued asylum, withholding of removal, and

Convention Against Torture (“CAT”) relief. Liu claims that, shortly after entering the

United States, he joined the China Democracy Party (“CDP”), which seeks to promote

democracy in China and opposes the ruling Communist Party. Liu testified before the IJ

that he participated in ten or more protests outside the office of China’s Consul General in

New York, wrote five articles for the CDP’s website, passed out flyers in the street, and

attended meetings. He claims to fear future persecution in China due to his CDP

activities in the United States.

The IJ rejected the credibility of Liu’s testimony. Among other things, the

IJ observed that, in the I-589 application, Liu had stated that he recruited a woman in

China, Ting Zhao, to join the CDP, and that the Chinese government had learned of Liu’s

CDP membership by arresting Zhao and pressuring her to identify Liu. The IJ noted that

Liu made no mention in his direct testimony at the merits hearing of having recruited

Zhao, of the Chinese authorities having learned of his CDP membership through Zhao, or

of officials in China having visited his parents’ home after learning of his CDP activities. 
 The excluded evidence included Liu’s original passport, various CDP membership 1

materials, internet articles with their web addresses, and testimony from a witness to

verify Liu’s CDP membership and activities.

 The IJ’s Docket Control Order provided that “[a]ny document filed after [October 2

31, 2007] must be accompanied by a motion to enlarge deadline and written

explanation of why the document was not filed in time.” A.R. at 545 (emphasis in

original).

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Because Liu neglected to mention this “centerpiece” of his asylum claim, and in light of

additional inconsistencies that the IJ noted, relief was denied.

The BIA affirmed the adverse credibility determination, citing several

inconsistencies in Liu’s testimony, and thus affirmed the denial of asylum and

withholding of removal. The BIA also rejected Liu’s challenge to the exclusion of certain

documents and testimony that Liu had sought to introduce at his April 2008 hearing. The 1

BIA noted that the IJ had set an October 31, 2007, deadline for the submission of this

evidence, and that Liu had failed to seek an extension of time or to show good cause for

his late filing. The BIA also affirmed the denial of CAT relief. Liu timely filed a 2

petition for review in this Court.

We have jurisdiction under 8 U.S.C. § 1252(a)(1). We review agency

factual findings, including an adverse credibility determination, under the deferential

substantial evidence standard. Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005). An

adverse credibility finding must be upheld unless “any reasonable adjudicator would be

compelled to conclude to the contrary.” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir.

2004) (quotation marks omitted). 
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The REAL ID Act, which the BIA properly applied here, provides that the

IJ, after “[c]onsidering the totality of the circumstances, and all relevant factors,” may

base an adverse credibility determination

on the demeanor, candor, or responsiveness of the applicant

or witness, the inherent plausibility of the applicant’s or

witness’s account, the consistency between the applicant’s or

witness’s written and oral statements (whenever made and

whether or not under oath, and considering the circumstances

under which the statements were made), the internal

consistency of each such statement, the consistency of such

statements with other evidence of record (including the

reports of the Department of State on country conditions), and

any inaccuracies or falsehoods in such statements, without

regard to whether an inconsistency, inaccuracy, or falsehood

goes to the heart of the applicant’s claim, or any other

relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii).

We find substantial evidence to support the adverse credibility

determination here. The central failing identified by the BIA was the discrepancy

between Liu’s direct testimony and his I-589 statement. As the BIA observed, “the

inconsistencies included [Liu]’s failure to indicate on direct examination that his

membership in the opposition party had been disclosed to government authorities by a

friend he recruited into the party.” A.R. at 4. In his I-589 statement, Liu had stated that

the “China communist government had discovered the fact that I joined CDP from Ting

Zhao ... another female member recruited by me.” Id. at 456. While Liu testified on

direct examination that Chinese officials became aware of his CDP activities after
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interrogating his parents and, on cross-examination, he acknowledged that he had

convinced friends in China to join the CDP, “when confronted by the [IJ] that his claim of

his parents disclosing his party membership was inconsistent with his asylum application

that stated his friend had made this disclosure, [Liu] refused to acknowledge the

inconsistent testimony.” Id. at 4. This inconsistency, as the BIA noted, goes to the heart

of Liu’s asylum application because it was the reason cited in the I-589 application for

Liu’s fear of returning to China.

The BIA noted further inconsistencies and omissions, including Liu’s

“claim that he freely talked to individuals in China on the telephone and his party’s

internet site was readily available in China, but could not obtain corroborative evidence of

his friend’s or parents’ interrogation as the Chinese authorities closely monitored the mail

and internet sites.” Id. at 4-5. In addition, Liu’s “application claimed that criminal

charges had been filed against him in China, but he denied this claim at the hearing in

April 2008 asserting that such charges might be filed against him if he is returned to

China.” Id. at 5. Finally, the BIA noted that the IJ had relied on Liu’s “demeanor during

the April 2008 hearing where he repeatedly was nonresponsive to questioning.” Id.

We cannot conclude on this record that any reasonable adjudicator would be

compelled to find Liu credible. Liu argues that the IJ mischaracterized his testimony, and

that the adverse credibility finding “was based on speculation and conjecture and the IJ’s

predisposition to find against [Liu] because of his failure to comply with her scheduling
 The BIA’s adverse credibility determination supports its decision to affirm the denial 3

of asylum and withholding of removal. Because Liu does not argue his CAT claim on

this appeal, we deem that issue waived and do not address it. See Lie v. Ashcroft, 396

F.3d 530, 532 n.1 (3d Cir. 2005). 

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order.” Petitioner’s Br. at 33. Liu bases these arguments, however, upon his own

readings of the record and, particularly, upon his own view as to how the various answers

that he gave to questions posed at the merits hearing should be interpreted. We must be

mindful that, “[w]here there are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City,

N.C., 470 U.S. 564, 574 (1985). Because the record fairly supports the BIA’s view of

Liu’s testimony and its perceived shortcomings, Liu’s proposed alternative readings of

the record are insufficient to compel a contrary credibility finding.3

Liu also challenges the decision to exclude his late-filed evidence and the

witness testimony that he wished to present to corroborate his CDP membership and

activities. See note 1, supra. An IJ is authorized to “set and extend time limits for the

filing of applications and related documents,” and “[i]f an application or document is not

filed within the time set by the [IJ], the opportunity to file that application or document

shall be deemed waived.” 8 C.F.R. § 1003.31(c). Courts review the exclusion of

evidence under this provision for abuse of discretion. See Dedji v. Mukasey, 525 F.3d

187, 191 (2d Cir. 2008). We discern no abuse of discretion.

As the BIA explained at length, the IJ noted at a hearing on August 2, 2007,
 To the extent that Liu couches his argument in terms of a due process violation, he 4

did not exhaust his administrative remedies before the BIA. Consequently, this Court

lacks jurisdiction to consider a due process challenge. See 8 U.S.C. § 1252(d)(1). 

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Liu’s desire to present his evidence, and Liu’s counsel requested a “couple of months” to

obtain the evidence. The IJ set a deadline of October 31, 2007, which Liu failed to meet. 

The BIA found that “[t]he 3-month deadline imposed by the [IJ] was reasonable to obtain

evidence that was in [Liu]’s possession or could be easily obtained by [Liu].” A.R. at 3. 

Further, the BIA noted Liu’s failure to notify the IJ of any difficulty in obtaining the

evidence and his failure to move for late filing of the materials by showing good cause.

Liu contends that the record fails to support the BIA’s findings, and he

argues that the government suffered no prejudice from his late filing. Liu concedes, as he

must, that he failed to comply with the IJ’s deadline for filing, and that he did not move to

enlarge the deadline, but he argues that “the IJ’s exclusion of evidence must still be

reasonable under the circumstances[.]” Petitioner’s Br. at 24. We agree with the 4

government that, even if Liu could show that his evidence was improperly excluded from

consideration at the merits hearing, he has not shown how the admission of that evidence

might have affected the credibility determination. As discussed, the adverse credibility

finding was based on numerous inconsistencies and shortcomings in Liu’s testimony,

particularly the inconsistency between his direct testimony and the I-589 application on

the basis for his claimed fear of returning to China. Consequently, given the absence of a

showing of prejudice to Liu, we cannot conclude that the BIA abused its discretion in
affirming the IJ’s decision to exclude Liu’s late-filed evidence.

For the foregoing reasons, we will deny the petition for review.

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