     15-2301
     Liu v. Lynch
                                                                                        BIA
                                                                                    Sichel, IJ
                                                                                A088 827 636
                         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   9th day of January, two thousand seventeen.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            DENNY CHIN,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   YIPING LIU, AKA YI PING LIU,
14            Petitioner,
15
16                  v.                                                15-2301
17                                                                    NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Michael A. O. Brown, Law Offices of
24                                      Michael Brown, PC, New York, N.Y.
25
26   FOR RESPONDENT:                    Benjamin C. Mizer, Principal Deputy
27                                      Assistant Attorney General; Anthony
28                                      P.   Nicastro,   Acting   Assistant
29                                      Director; Sabatino F. Leo, Trial
30                                      Attorney, Office of Immigration
31                                      Litigation,   U.S.  Department   of
32                                      Justice, Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    DISMISSED IN PART and DENIED IN PART.

5        Petitioner Yiping Liu, a native and citizen of China, seeks

6    review of a June 23, 2015 decision of the BIA affirming a March

7    21, 2014 decision of an Immigration Judge (“IJ”), denying Liu’s

8    application for asylum, withholding of removal, and relief

9    under the Convention Against Torture (“CAT”).      In re Yiping

10   Liu, No. A088 827 636 (B.I.A. June 23, 2015), aff’g No. A088

11   827 636 (Immig. Ct. N.Y. City Mar. 21, 2014).     We assume the

12   parties’ familiarity with the underlying facts and procedural

13   history in this case.

14       We have reviewed both the IJ’s and BIA’s decisions.

15   Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).   The

16   applicable standards of review are well established.    8 U.S.C.

17   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

18   (2d Cir. 2008).

19       I.   Asylum

20       We dismiss as untimely Liu’s petition relating to the

21   agency’s pretermission of his asylum application.      An asylum

22   application must be filed within one year of an applicant’s

23   arrival in the United States, absent changed or extraordinary
                                    2
1    circumstances.    8 U.S.C. § 1158(a)(2)(B), (D). We lack

2    jurisdiction to review a denial of asylum on timeliness grounds.

3    8 U.S.C. § 1158(a)(3).    Although we retain jurisdiction to

4    review “constitutional claims or questions of law,” 8 U.S.C.

5    § 1252(a)(2)(D), Liu’s argument that the agency erred by

6    finding that he did not establish extraordinary circumstances

7    does not present a reviewable claim or question, see

 8   Joaquin-Porras v. Gonzales, 435 F.3d 172, 180 (2d Cir. 2006).

9    II. Credibility

10       For applications governed by the REAL ID Act, like Liu’s,

11   the agency may, considering the totality of the circumstances,

12   base a credibility finding on an applicant’s demeanor, the

13   plausibility of his account, and inconsistencies in his

14   statements and other record evidence without regard to whether

15   they go “to the heart of the applicant’s claim.”       8 U.S.C.

16   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.       We

17   defer to an IJ’s credibility determination “unless . . . it is

18   plain that no reasonable fact-finder could make such an adverse

19   credibility ruling.”   Xiu Xia Lin, 534 F.3d at 167.    Further,

20   “[a] petitioner must do more than offer a plausible explanation

21   for his inconsistent statements to secure relief; he must

22   demonstrate that a reasonable fact-finder would be compelled

23   to credit his testimony.”   Majidi v. Gonzales, 430 F.3d 77, 80
                                    3
1    (2d Cir. 2005) (quotation marks omitted).             Here, substantial

2    evidence supports the agency’s adverse credibility

3    determination.

4          First, the agency reasonably relied on inconsistencies

5    between     Liu’s    application     and     testimony   about   how   he

6    distributed Falun Gong fliers.             See Xiu Xia Lin, 534 F.3d at

7    163-64.     Liu stated in his application and testified on direct

8    that he disguised the Falun Gong fliers with advertisements and

9    put them into mailboxes in the middle of the night.              However,

10   Liu testified on cross-examination that he did not disguise the

11   fliers with advertisements.         The IJ was not compelled to accept

12   Liu’s    explanation    that   he    had    perhaps   misunderstood    the

13   question.       Majidi, 430 F.3d at 80.

14         Second, the agency reasonably relied on inconsistencies

15   between Liu’s application and testimony concerning the timeline

16   for his release from detention and escape from China.             See Xiu

17   Xia Lin, 534 F.3d at 163-64.        Liu stated in his application that

18   he was detained for five days following his February 2000

19   arrest, went into hiding soon after his release, left China on

20   March 29, 2000, and arrived in the United States on September

21   23,     2000.    However,   Liu     testified    on   both   direct    and

22   cross-examination that he went into hiding on September 20 or

23   22, 2000 and arrived in the United States on September 23, 2000.
                                           4
 1   Liu was asked how he could have gone into hiding on September

 2   22, but arrived in the United States the next day; Liu paused

 3   and then responded that he left China on March 29, 2000.      He

 4   also stated at various points that he went into hiding on

 5   February 20, February 22, and March 20, 2000.      The IJ was not

 6   compelled to accept Liu’s explanations, which only created

 7   additional inconsistencies.    See Majidi, 430 F.3d at 80.

 8        Third, the agency reasonably relied on Liu’s father’s

 9   inconsistent testimony.   See Xiu Xia Lin, 534 F.3d at 163-64.

10   Liu’s father initially testified that Liu did not get into any

11   trouble in China; he was immediately asked that same question

12   again, however, and testified that Liu had been arrested. The

13   IJ was entitled to reject Liu’s father’s explanation that he

14   was nervous and forgot about Liu’s arrest.      Majidi, 430 F.3d

15   at 80.

16        Fourth, the agency reasonably relied on the implausibility

17   of certain aspects of Liu’s claimed Falun Gong activities in

18   China.   See Xiu Xia Lin, 534 F.3d at 167-68.   The agency found

19   implausible Liu’s claims that he learned but did not practice

20   Falun Gong in China because he was afraid of getting caught after

21   the government’s 1999 crackdown, and that he felt comfortable

22   distributing fliers only because he was a minor.    That finding

23   is reasonably supported by the entire record.      See Ying Li v.
                                    5
1    Bureau of Citizenship & Immigration Servs., 529 F.3d 79, 82 (2d

2    Cir. 2008).

3         In short, the agency’s adverse credibility determination

4    is   supported   by   substantial       evidence.   See   8   U.S.C.   §

5    1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.                 That

6    determination is dispositive of Liu’s claims for withholding

7    of removal and CAT relief because those claims are based on the

8    same factual predicate.     See Paul v. Gonzales, 444 F.3d 148,

9    156-57 (2d Cir. 2006).

10        For the foregoing reasons, the petition for review is

11   DISMISSED IN PART and DENIED IN PART.         As we have completed our

12   review, any stay of removal that the Court previously granted

13   in this petition is VACATED, and any pending motion for a stay

14   of removal in this petition is DENIED as moot.            Any pending

15   request for oral argument in this petition is DENIED in

16   accordance with Federal Rule of Appellate Procedure 34(a)(2),

17   and Second Circuit Local Rule 34.1(b).

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




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