     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.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   6th day of May, two thousand fifteen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            JOSÉ A. CABRANES,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   LI LIU,
14                  Petitioner,
15
16                  v.                                               14-966
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.1
22   _____________________________________
23
24   FOR PETITIONER:                    David A. Bredin, Flushing, New York.
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.
1    FOR RESPONDENT:            Joyce R. Branda, Acting Assistant
2                               Attorney General; Kiley Kane, Senior
3                               Litigation Counsel; Arthur L. Rabin,
4                               Trial Attorney, Office of
5                               Immigration Litigation, United
6                               States Department of Justice,
7                               Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

11   ORDERED, ADJUDGED, AND DECREED that the petition for review is

12   DENIED.

13       Petitioner Li Liu, a native and citizen of the People’s

14   Republic of China, seeks review of a March 6, 2014, decision

15   of the BIA affirming a September 8, 2011, decision of an

16   Immigration Judge (“IJ”) denying Liu’s application for asylum,

17   withholding of removal, and relief under the Convention Against

18   Torture (“CAT”).   In re Li Liu, No. A200 745 418 (B.I.A. Mar.

19   6, 2014), aff’g No. A200 745 418 (Immig. Ct. N.Y. City Sept.

20   8, 2011).    We assume the parties’ familiarity with the

21   underlying facts and procedural history in this case.

22       Under the circumstances of this case, we have reviewed the

23   decision of the IJ as supplemented by the BIA.     See Yan Chen

24   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The applicable

25   standards of review are well established.        Xiu Xia Lin v.
                                    2
1    Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008); Salimatou Bah v.

2    Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).                    The agency may,

3    “[c]onsidering the totality of the circumstances,” base a

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

5    plausibility    of    her    account,      and   inconsistencies      in     her

6    statements    and    other    record       evidence   “without      regard    to

7    whether” they go “to the heart of the applicant’s claim.”

8    8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

9    Substantial evidence supports the agency’s determination that

10   Liu was not credible.

11         The agency reasonably relied on Liu’s demeanor, noting that

12   her   responsive      testimony      on     direct    examination     changed

13   significantly       upon    cross-examination,        when    her   testimony

14   became evasive.       See 8 U.S.C. § 1158(b)(1)(B)(iii); see also

15   Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005).                      The

16   agency’s     demeanor      finding     and    the     overall    credibility

17   determination were bolstered by Liu’s inconsistent statements

18   regarding whether doctors in China told her that she would be

19   unable to use an intra-uterine device due to uterine damage

20   caused by an abortion.        See Li Hua Lin v. U.S. Dep’t of Justice,

21   453 F.3d 99, 109 (2d Cir. 2006); see also Xiu Xia Lin, 534 F.3d
                                            3
1    at 165-67.   The agency also reasonably relied in part on Liu’s

2    admission that she made false statements to U.S. consular

3    officials to enter the United States at a time when she was not

4    fleeing persecution.   See Siewe v. Gonzales, 480 F.3d 160, 170

5    (2d Cir. 2007).

6        Having questioned Liu’s credibility, the agency reasonably

7    relied further on her failure to provide certain corroborating

8    evidence to rehabilitate her testimony.            See Biao Yang v.

9    Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).        The IJ did not err

10   in giving diminished weight to Liu’s brother-in-law’s letter

11   because it was prepared for litigation and the author was an

12   interested party not subject to cross-examination.            See Y.C.

13   v. Holder, 741 F.3d 324, 332 (2d Cir. 2013); Xiao Ji Chen v.

14   U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006).

15   Moreover, as the BIA concluded, Liu failed to demonstrate that

16   the IJ violated her due process rights by declining to provide

17   her additional time to obtain corroborating evidence because

18   she did not establish that she was prejudiced as a result.         See

19   Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008).

20       Given the demeanor, inconsistency, false statement, and

21   corroboration   findings,   the       agency’s   adverse   credibility
                                       4
1    determination is supported by substantial evidence.            See

2    8 U.S.C. § 1158(b)(1)(B)(iii).       That finding is dispositive of

3    asylum, withholding of removal, and CAT relief insofar as they

4    were based on Liu’s family planning claim.            See Paul v.

5    Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).             We lack

6    jurisdiction to review the IJ’s denial of CAT relief independent

7    of the credibility determination because Liu did not challenge

8    the IJ’s decision to that extent before the BIA.      See Karaj v.

9    Gonzales, 462 F.3d 113, 119 & n.2 (2d Cir. 2006).

10       For the foregoing reasons, the petition for review is

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

12   that the Court previously granted in this petition is VACATED,

13   and any pending motion for a stay of removal in this petition

14   is DISMISSED as moot.    Any pending request for oral argument

15   in this petition is DENIED in accordance with Federal Rule of

16   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

17   34.1(b).

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




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