Liu v. BIA, (2nd Cir. 2007)
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07-0554-ag
Liu v. BIA
BIA
Defonzo, IJ
A 96 031 669
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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O R D E R ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE D O C K E T NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED. A t a stated term of the United States Court of Appeals f o r the Second Circuit, held at the Daniel Patrick Moynihan U n i t e d States Courthouse, 500 Pearl Street, in the City of New Y o r k , on the 24 t h day of August, two thousand seven. PRESENT: H O N . ROSEMARY S. POOLER, H O N . ROBERT D. SACK, H O N . RICHARD C. WESLEY, C i r c u i t Judges. S H E N G LIU, Petitioner, v. 07-0554-ag NAC B O A R D OF IMMIGRATION APPEALS, Respondent. F O R PETITIONER: J o h n Z. Zhang, New York, New York. F O R RESPONDENT: P e t e r D. Keisler, Assistant Attorney 1 G e n e r a l , Civil Division; Aviva L.
2 P o c z t e r , Senior Litigation Counsel; 3 J o h n W. Blakeley, Trial Attorney, 4 O f f i c e of Immigration Litigation, 5 U n i t e d States Department of Justice, 6 W a s h i n g t o n , D.C.
7 8 9 U P O N DUE CONSIDERATION of this petition for review of a 10 B o a r d of Immigration Appeals ("BIA") decision, it is hereby 11 O R D E R E D , ADJUDGED, AND DECREED that the petition for review 12 i s DENIED.
P e t i t i o n e r Sheng Liu, a native and citizen of the P e o p l e ' s Republic of China, seeks review of a January 19, 2 0 0 7 order of the BIA affirming the August 18, 2005 decision o f Immigration Judge ("IJ") Paul A. Defonzo denying Liu's a p p l i c a t i o n s for asylum, withholding of removal, and relief u n d e r the Convention Against Torture ("CAT"). In re Sheng L i u , No. A 96 031 669 (B.I.A. Jan. 19, 2007), aff'g No. A 96 0 3 1 669 (Immig. Ct. N.Y. City, Aug. 18, 2005). We assume t h e parties' familiarity with the underlying facts and p r o c e d u r a l history in this case.
W h e n the BIA affirms the IJ's decision in all respects b u t one, this Court reviews the IJ's decision as modified by t h e BIA decision, i.e., "minus the single argument for d e n y i n g relief that was rejected by the BIA." Xue Hong Yang v . U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
W h e n "the BIA agrees with the IJ's conclusion that a p e t i t i o n e r is not credible and, without rejecting any of the I J ' s grounds for decision, emphasizes particular aspects of t h a t decision," this Court reviews both the BIA's and IJ's o p i n i o n s -- or more precisely, the Court reviews "the IJ's d e c i s i o n including the portions not explicitly discussed by t h e BIA". Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d C i r . 2005). Here, the BIA disagreed with the IJ's finding t h a t Liu had filed a frivolous asylum application. In a d d i t i o n , the BIA referenced some, but not all of the f a c t o r s upon which the IJ relied in making his adverse c r e d i b i l i t y finding. Thus, we review both the BIA's and I J ' s decisions, excluding the IJ's finding of frivolousness.
T h i s Court reviews the agency's factual findings, i n c l u d i n g adverse credibility determinations, under the s u b s t a n t i a l evidence standard, treating them as "conclusive u n l e s s any reasonable adjudicator would be compelled to c o n c l u d e to the contrary." 8U.S.C. § 1252(b)(4)(B); see, e . g . , Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n.7 (2d Cir. 2004).
S u b s t a n t i a l evidence supports the agency's adverse c r e d i b i l i t y determination. The record reflects that when f a c e d with vague testimony regarding the manner in which C h i n e s e government officials warned Liu not to attend an u n d e r g r o u n d church, the IJ adequately probed for further details. However, this probing either yielded no i n f o r m a t i o n from Liu, or elicited further discrepancies b e t w e e n his testimony and written application. Therefore, L i u ' s vague testimony substantiated the IJ's adverse c r e d i b i l i t y finding. See Jin Shui Qiu v. Ashcroft, 329 F.3d 1 4 0 , 152 (2d Cir. 2003).
T h e IJ also reasonably relied on inconsistencies in the r e c o r d between Liu's testimony, written application, and s t a t e m e n t s from family members to support his adverse c r e d i b i l i t y finding. For instance, the IJ accurately o b s e r v e d that Liu testified that three cadres and six public s e c u r i t y officials "burst into" a church gathering in August 2 0 0 3 , but stated in his written application only three v i l l a g e cadres entered the church. In addition, Liu t e s t i f i e d that he lived at his aunt's home from August 2003 u n t i l November 2003, and did not work, but he indicated in h i s written application that he was living at home and w o r k i n g in construction during that period. The IJ p e r m i s s i b l y rejected Liu's explanations for these various d i s c r e p a n c i e s that his written application and family m e m b e r s ' statements were incorrect. See Majidi v. Gonzales, 4 3
A d d i t i o n a l l y , the IJ reasonably found that Liu's o m i s s i o n from his written application of an alleged physical a l t e r c a t i o n between him and government officials, further u n d e r m i n e d his credibility. Because this omission was m a t e r i a l to his claim that he had narrowly escaped arrest in C h i n a on account of his practice of Christianity, it s u p p o r t e d the IJ's adverse credibility finding. Cf.
S e c a i d a - R o s a l e s v. INS, 331 F.3d 297, 308 (2d Cir. 2003).
M o r e o v e r , we accord deference to the IJ's demeanor finding, s p e c i f i c a l l y , that Liu's responses were often "unresponsive." See Zhou Yun Zhang, 386 F.3d at 73 ( e m p h a s i z i n g that a fact-finder who assesses testimony t o g e t h e r with demeanor is in the best position to discern m o r e accurately the impression conveyed by the witness).
F i n a l l y , there is no indication in the record that the d e f i c i e n c i e s in Liu's testimony were caused by Liu's lack of e d u c a t i o n , or errors in the interpreter's translation, as L i u argues in his brief to this Court. Liu, represented by c o u n s e l at all stages of his proceedings, did not raise any o b j e c t i o n s to the translation during his hearing.
B e c a u s e the only evidence of a threat to Liu's life or f r e e d o m or a likelihood of torture depended upon his c r e d i b i l i t y , the adverse credibility determination in this c a s e necessarily precludes success on his claims for w i t h h o l d i n g of removal and relief under the CAT. See Paul v . Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
F o r the foregoing reasons, the petition for review is DENIED.
F O R THE COURT: C a t h e r i n e O'Hagan Wolfe, Clerk B y : O l i v a M. George, Deputy Clerk
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This document cites
- U.S. Court of Appeals for the Second Circuit - Felix Hilario Secaida-Rosales, Petitioner, v. Immigration and Naturalization Service, Respondent., 331 F.3d 297 (2nd Cir. 2003)
- U.S. Court of Appeals for the Second Circuit - Zhou Yun Zhang, Petitioner, v. United States Immigration and Naturalization Service, Respondent., 386 F.3d 66 (2nd Cir. 2004)
- U.S. Court of Appeals for the Second Circuit - Xue Hong Yang, Petitioner, v. United States Department of Justice and Attorney General Gonzales, * Respondents., 426 F.3d 520 (2nd Cir. 2005)
- U.S. Court of Appeals for the Second Circuit - Yun-Zui Guan, Petitioner, v. Alberto R. Gonzales, United States Attorney General, * Respondent., 432 F.3d 391 (2nd Cir. 2005)
- U.S. Court of Appeals for the Second Circuit - Victor Paul, Petitioner, v. Alberto Gonzales, * Attorney General of the United States, Respondent., 444 F.3d 148 (2nd Cir. 2006)
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