                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-17-2009

Liu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2737




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IMG-094                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 08-2737


                                   JIAN SONG LIU,
                                                       Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                    Respondent




                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                             (Agency No. A98 940 240)
                    Immigration Judge: Honorable Miriam K. Mills


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 11, 2009

              Before: AMBRO, FISHER AND JORDAN, Circuit Judges

                             (Opinion filed: June 17, 2009)


                                       OPINION


PER CURIAM

      Jian Song Liu, a native and citizen of the People’s Republic of China, petitions for

review of the BIA’s decision denying his applications for asylum, withholding of removal
and protection under the Convention Against Torture (“CAT”).

       Liu entered the United States on June 12, 2005, without any valid entry, travel or

identity documents. At the airport, Liu underwent a credible fear interview and stated

that he fled China because of persistent ridicule by his father and other people in his life.

The government issued a Notice to Appear, charging him with removability under INA

§ 212(a)(7)(A)(i). Liu conceded removability and applied for asylum, withholding and

protection under CAT.

       At the merits hearing, Liu testified that he suffered past persecution on the basis of

his practice of Falun Gong, and that he feared future persecution on that basis and on

account of his illegal exit from China. Liu testified that his uncle, Guang Lin Li,

introduced him to Falun Gong in January 2002, and that he eventually began practicing

once a week. On September 20, 2003, at 8 p.m., the police stormed a house where Liu

and another individual were practicing Falun Gong. They arrested Liu, put him in

handcuffs and took him to a police station nearby. They smacked him, his face hit the

corner of the table, and his head started bleeding. They detained him overnight. The next

day, they interrogated him again and questioned his reasons for practicing Falun Gong.

Liu told them he believed that it would promote good health. After shining a light in

Liu’s face, the police left. Liu remained in detention. The third interrogation occurred on

September 27, 2003. The police brought Liu into a room and forced him to review

material that disparaged Falun Gong. He was eventually released. Liu testified that the



                                              2
government maintained a record of his arrest, such that he could not live in the manner he

had lived before. Liu testified that his parents then paid a smuggler (known as a

“snakehead”) $60,000 to bring him to the United States.

       On cross-examination, Liu admitted that he never mentioned Falun Gong during

his credible fear interview, which was conducted in Foo Chow, his native language. Liu

explained that the smuggler counseled him not to mention Falun Gong, and that he felt

compelled to follow his advice. As a result, Liu falsely told the immigration officer that

he feared returning to China because he had lived a life of ridicule and isolation: people

including his own father made fun of him because of his poor eyesight and slow manner

of walking and working. Among other documentary evidence, Liu submitted a letter

from Li, the man who introduced him to Falun Gong, to corroborate his arrest, and

photographs showing Liu holding particular Falun Gong poses.

       The IJ denied relief on the basis that Liu lacked credibility and had failed to meet

his evidentiary burden. The IJ determined that Liu lacked credibility because of

inconsistent testimony. Specifically, the IJ noted that Liu completely omitted any

mention of Falun Gong during his credible fear interview.1 The IJ also noted that Liu had

described Guang Ling Li as his “uncle,” even though Li describes himself in a letter as a

“close friend” of Liu. Liu explained that followers of Falun Gong often refer to each




   1
   We note that Liu has not challenged the manner in which the credible fear interview
was conducted.

                                             3
other as a “close friend,” but the IJ refused to believe that Liu’s uncle would have

completely omitted any mention of their blood tie.

       The IJ also faulted Liu for failing to “show the genuineness” of his Falun Gong

practice in the U.S. or in China. The IJ determined that Liu had not established a

foundation from which the IJ could determine what the poses meant, or their fidelity to

Falun Gong. The IJ also concluded that Liu would not face imprisonment or arrest upon

return to China for his illegal exit, but that he might encounter a brief detention while

waiting for his family members to retrieve him.

       The BIA adopted and affirmed the decision of the IJ. Specifically, the BIA found

no clear error in the IJ’s adverse credibility determination because the BIA agreed that

Liu’s explanation for why he lied at the credible fear interview was not convincing. The

BIA also referenced an investigative report affirming the authenticity of Liu’s supporting

medical documents. The BIA determined that, even assuming the authenticity of these

documents, ample evidence supported the IJ’s credibility determination. Liu then filed

this petition for review.

       We have jurisdiction over final orders of removal. 8 U.S.C. § 1252(a)(1).

“[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for

the IJ’s decision, [this Court has] authority to review the decisions of both the IJ and the

BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). This Court reviews the

factual findings for substantial evidence. Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228



                                              4
(3d Cir. 2007). The IJ’s and BIA’s decision will not be disturbed “unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Yu v. Att’y Gen., 513 F.3d

346, 348 (3d Cir. 2008) (quotation omitted).

       In his petition for review, Liu contends that the BIA engaged in improper

factfinding by considering an investigative report affirming the authenticity of documents

Liu had submitted regarding his medical care and prescription. Liu contends that the BIA

should have remanded his case to the IJ to consider the report. This argument is

unavailing because the BIA considered the report favorably to Liu. He suffered no

disadvantage as a result of the BIA’s crediting and considering the report.

       Liu also contends that the IJ’s adverse credibility determination is not supported by

substantial evidence. We disagree. Inconsistencies in an applicant’s testimony may

support an adverse credibility determination.2 Chen, 376 F.3d at 224. Here, the IJ

identified specific inconsistencies in Liu’s testimony that support her conclusion,

principally the discrepancy between Liu’s credible fear interview and his testimony at the

merits hearing.3 The BIA affirmed the IJ’s decision and considered Liu’s explanation for

the discrepancy between the interviews unpersuasive. As Liu admitted to lying at the


   2
    As Liu filed his application for asylum after May 11, 2005, the REAL ID Act applies
to his claim, and even minor inconsistencies are sufficient when considering the “totality
of the circumstances.” 8 U.S.C. § 1158(b)(1)(B)(iii).
   3
    An IJ may properly rely on substantial discrepancies between statements given at an
airport interview and at the merits hearing when the airport interview was conducted in
the petitioner’s native language, and there are no concerns about the manner in which the
interview was conducted or transcribed. See Chen, 376 F.3d at 224.

                                               5
credible fear interview and offered an implausible explanation – that the smuggler told

him not to mention Falun Gong, which is a legitimate basis for an asylum claim – we do

not believe that a reasonable factfinder would be compelled to conclude that Liu was

credible. Accordingly, substantial evidence supports the IJ’s and BIA’s conclusion. We

will deny the petition for review.




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