14-966 Liu v. Lynch BIA Zagzoug, IJ A200 745 418 

### 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 TO 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **6 th**  **day of May, two thousand fifteen.** 4 5 **PRESENT:** 6 **RALPH K. WINTER,** 7 **JOSÉ A. CABRANES,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **LI LIU,** 13 Petitioner **,** 14 15 **v. 14-966** 16 **NAC** 17 18 **LORETTA E. LYNCH, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **. 1**  21

**_____________________________________** 22 23 **FOR PETITIONER:** David A. Bredin, Flushing, New York. 24 25 26

1 - **Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is automatically substituted for former Attorney General Eric**  **H. Holder, Jr.**2 **FOR RESPONDENT:** Joyce R. Branda, Acting Assistant 1 Attorney General; Kiley Kane, Senior 2 Litigation Counsel; Arthur L. Rabin, 3 Trial Attorney, Office of 4 Immigration Litigation, United 5 States Department of Justice, 6 Washington, D.C. 7 8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review is 11

DENIED. 12 Petitioner Li Liu, a native and cit izen of the People’s 13 Republic of China, seeks review of a March 6, 2014, decision 14 of the BIA affirming a September 8, 2011, decision of an 15 Immigration Judge (“IJ”) denying Liu’s application for asylum, 16 withholding of removal, and relief under the Convention Against 17 Torture (“CAT”). In re Li Liu, No. A200 745 418 (B.I.A. Mar. 18 6, 2014), aff’g No. A200 745 418 (Immig. Ct. N.Y. City Sept. 19 8, 2011). We assume the parties’ familiarity with the 20 underlying facts and procedural history in this case. 21 Under the circumstances of this case, we have reviewed the 22 decision of the IJ as supplemented by the BIA. See Yan Chen 23 v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The applicable 24 standards of review are well established. Xiu Xia Lin v. 253 Mukasey , 534 F.3d 162, 165-66 (2d Cir. 2008); Salimatou Bah v. 1 Mukasey , 529 F.3d 99, 110 (2d Cir. 2008). The agency may, 2 “[c]onsidering the totality of the circumstances,” base a 3 credibility finding on an asylum applicant’s demeanor, the 4 plausibility of her account, and inconsistencies in her 5 statements and other record evidence “without regard to 6 whether” they go “to the heart of the applicant’s claim.” 7 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 163-64. 8 Substantial evidence supports the agency’s determination that 9 Liu was not credible. 10 The agency reasonably relied on Liu’s demeanor, noting that 11 her responsive testimony on direct examination changed 12 significantly upon cross-examination, when her testimony 13 became evasive. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also 14 Majidi v. Gonzales , 430 F.3d 77, 81 n.1 (2d Cir. 2005). The 15 agency’s demeanor finding and the overall credibility 16 determination were bolstered by Liu’s inconsistent statements 17 regarding whether doctors in China told her that she would be 18 unable to use an intra-uterine device due to uterine damage 19 caused by an abortion. See Li Hua Lin v. U.S. Dep’t of Justice , 20 453 F.3d 99, 109 (2d Cir. 2006); see also Xiu Xia Lin , 534 F.3d 214 at 165-67. The agency also reasonably relied in part on Liu’s 1 admission that she made false statements to U.S. consular 2 officials to enter the United States at a time when she was not 3 fleeing persecution. See Siewe v. Gonzales , 480 F.3d 160, 170 4 (2d Cir. 2007). 5 Having questioned Liu’s credibility, the agency reasonably 6 relied further on her failure to provide certain corroborating 7 evidence to rehabilitate her testimony. See Biao Yang v. 8 Gonzales , 496 F.3d 268, 273 (2d Cir. 2007). The IJ did not err 9 in giving diminished weight to Liu’s brother-in-law’s letter 10 because it was prepared for litigation and the author was an 11 interested party not subject to cross-examination. See Y.C. 12 v. Holder , 741 F.3d 324, 332 (2d Cir. 2013); Xiao Ji Chen v. 13 U.S. Dep’t of Justice , 471 F.3d 315, 341-42 (2d Cir. 2006). 14 Moreover, as the BIA concluded, Liu failed to demonstrate that 15 the IJ violated her due process rights by declining to provide 16 her additional time to obtain corroborating evidence because 17 she did not establish that she was prejudiced as a result. See 18 Garcia-Villeda v. Mukasey , 531 F.3d 141, 149 (2d Cir. 2008). 19 Given the demeanor, inconsistency, false statement, and 20 corroboration findings, the agency’s adverse credibility 215 determination is supported by substantial evidence. See 1 8 U.S.C. § 1158(b)(1)(B)(iii). That finding is dispositive of 2 asylum, withholding of removal, and CAT relief insofar as they 3 were based on Liu’s family planning claim. See Paul v. 4 Gonzales , 444 F.3d 148, 156-57 (2d Cir. 2006). We lack 5 jurisdiction to review the IJ’s denial of CAT relief independent 6 of the credibility determination because Liu did not challenge 7 the IJ’s decision to that extent before the BIA. See Karaj v. 8 Gonzales , 462 F.3d 113, 119 & n.2 (2d Cir. 2006). 9 For the foregoing reasons, the petition for review is 10 DENIED. As we have completed our rev iew, any stay of removal 11 that the Court previously granted in this petition is VACATED, 12 and any pending motion for a stay of removal in this petition 13 is DISMISSED as moot. Any pending request for oral argument 14 in this petition is DENIED in accordance with Federal Rule of 15 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 16 34.1(b). 17

FOR THE COURT: 18 Catherine O = Hagan Wolfe, Clerk 19