         11-2029-ag
         Liu v. Holder
                                                                                        BIA
                                                                                 Vomacka, IJ
                                                                            A088 783 121/122
                          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 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
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 11th day of July, two thousand twelve.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                GERARD E. LYNCH,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _______________________________________
12
13       XIUZHI LIU, DEXIU LIU,
14                Petitioners,
15
16                       v.                                     11-2029-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONERS:              Thomas V. Massucci, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Nancy E. Friedman, Senior
28                                     Litigation Counsel; Christina Bechak
29                                     Parascandola, Trial Attorney, Office
30                                     of Immigration Litigation, U.S.
31                                     Department of Justice, Washington,
32                                     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

 4   is DISMISSED in part and DENIED in part.

 5       Petitioners Xiuzhi Liu and Dexiu Liu, natives and

 6   citizens of the People’s Republic of China, seek review of

 7   the April 21, 2011, decision of the BIA affirming the August

 8   26, 2009, decision of an Immigration Judge (“IJ”),

 9   pretermitting Xiuzhi’s application for asylum as untimely

10   and denying her withholding of removal and relief under the

11   Convention Against Torture (“CAT”).    In re Xiuzhi Liu, Dexiu

12   Liu, Nos. A088 783 121/122 (B.I.A. Apr. 21, 2011), aff’g

13   Nos. A088 783 121/122 (Immig. Ct. N.Y. City Aug. 26, 2009).*

14   We assume the parties’ familiarity with the underlying facts

15   and procedural history in this case.

16       As an initial matter, we lack jurisdiction to review

17   the agency’s decision insofar as it pretermitted Xiuzhi’s

18   untimely asylum application.   See 8 U.S.C. § 1158(a)(3).

19   However, we may review Xiuzhi’s challenges to the agency’s

20   denial of withholding of removal and CAT relief.


           *
              Dexiu Liu was included as a derivative beneficiary
       on Xiuzhi Liu’s asylum application. See 8 U.S.C.
       § 1158(b)(3)(A) (providing that the spouse of an alien
       granted asylum may receive derivative asylee status).
                                    2
 1       Under the circumstances of this case, we have reviewed

 2   both the IJ’s and the BIA’s opinions “for the sake of

 3   completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

 4   2008).   The applicable standards of review are well

 5   established.     See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia

 6   Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008); Aliyev

 7   v. Mukasey, 549 F.3d 111, 115 (2d Cir. 2008).

 8       Substantial evidence supports the agency’s

 9   determination that petitioners were not credible as to their

10   assertion that Xiuzhi had suffered past persecution on

11   account of her religion and violation of China’s family

12   planning policy.    For asylum applications governed by the

13   REAL ID Act, such as the application in this case, the

14   agency may, considering the totality of the circumstances,

15   base a credibility finding on an asylum applicant’s

16   demeanor, the plausibility of her account, and

17   inconsistencies in record evidence, without regard to

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

19   8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534

20   F.3d at 163-64.

21       In finding petitioners not credible, the agency

22   reasonably relied in part on discrepancies between their


                                     3
 1   testimony regarding their dates of arrival in the United

 2   States, their interactions with family planning officials,

 3   and their flight into hiding.       See 8 U.S.C.

 4   § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d at 163-

 5   64, 166-67.   Moreover, a reasonable factfinder would not be

 6   compelled to credit petitioners’ explanations for these

 7   inconsistencies.   See Majidi v. Gonzales, 430 F.3d 77, 80-81

 8   (2d Cir. 2005).

 9       In addition, the agency reasonably questioned the

10   plausibility of certain aspects of petitioners’ testimony,

11   including Dexiu’s assertion that, although village officials

12   sought to arrest him for nine years, they were unable to do

13   so despite the fact that he spent the majority of each of

14   those years working and living in that village, and only a

15   few months of those years “hiding” at his sister’s house.

16   See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Siewe v.

17   Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (holding that

18   an implausibility finding that is based on “speculation that

19   inheres in inference is not ‘bald’ if the inference is made

20   available to the factfinder by record facts, or even a

21   single fact, viewed in the light of common sense and

22   ordinary experience.”).   Moreover, having questioned

23   petitioners’ credibility, the agency reasonably relied

                                     4
 1   further on their failure to provide evidence corroborating

 2   their assertions that Xiuzhi’s abortion was performed by

 3   force and that she suffered past persecution on account of

 4   her religion.   See Biao Yang v. Gonzales, 496 F.3d 268, 273

 5   (2d Cir. 2007) (recognizing that an applicant’s failure to

 6   corroborate testimony may bear on credibility, either

 7   because the absence of particular corroborating evidence is

 8   viewed as suspicious, or because the absence of

 9   corroboration in general makes an applicant unable to

10   rehabilitate testimony that has already been called into

11   question).

12       Ultimately, the agency’s adverse credibility

13   determination regarding petitioners’ assertion of past

14   persecution was supported by substantial evidence. Although

15   the BIA interpreted the IJ’s adverse credibility

16   determination as disposing of Xiuzhi’s claim that she feared

17   future persecution, the IJ determined that, even assuming

18   that Xiuzhi was a practicing Christian and that she had

19   violated the family planning policy, she did not satisfy her

20   burden of demonstrating a likelihood that she would be

21   persecuted or tortured on those grounds.   It would be futile

22   to remand for the BIA to correct its erroneous

23   interpretation of the IJ’s decision because petitioners do

                                   5
 1   not challenge the IJ’s determination that they failed to

 2   establish a likelihood that Xiuzhi would be persecuted under

 3   the family planning policy, and because, as discussed below,

 4   the IJ reasonably determined that Xiuzhi failed to

 5   demonstrate a likelihood of persecution on account of her

 6   religion.   See Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d

 7   Cir. 2008) (finding that remand is futile where the Court

 8   can confidently “predict that the agency would reach the

 9   same decision absent the errors that were made” (internal

10   quotation marks and citations omitted)).

11       The IJ did not err in finding that the country

12   conditions evidence in the record failed to demonstrate a

13   likelihood that Xiuzhi would be persecuted on account of her

14   religion because, as he noted, the U.S. Department of State

15   report, “2008 Human Rights Report: China” (“2008 Report”),

16   indicated that the Chinese government’s treatment of

17   unregistered churches varied from region to region with

18   members of unregistered churches in some areas experiencing

19   harassment and detention and members in other regions

20   practicing without interference, and Xiuzhi did not submit

21   country conditions evidence regarding the treatment of

22   practitioners in her home province of Fujian.   See Jian Xing

23   Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the

                                   6
 1   absence of solid support in the record for [petitioner’s]

 2   assertion that he will be subjected to [persecution], his

 3   fear is speculative at best”); cf. 8 C.F.R. § 1208.16(b)(2)

 4   (providing that an applicant for withholding of removal

 5   cannot demonstrate a likelihood of persecution if “the

 6   applicant could avoid a future threat to his life or freedom

 7   by relocating to another part of the proposed country of

 8   removal and, under all the circumstances, it would be

 9   reasonable to expect the applicant to do so.”).    Moreover,

10   the IJ did not err in finding that Xiuzhi’s claimed fear of

11   persecution was diminished by the fact that her unregistered

12   church group, which used to practice in members’ houses to

13   avoid detection by officials, had obtained a building for

14   worship with an address and phone number.     Cf. Melgar de

15   Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding

16   that where similarly situated family members remain unharmed

17   in petitioner’s native country, a claimed fear of future

18   persecution is weakened).   Accordingly, the IJ reasonably

19   denied Xiuzhi withholding of removal and CAT relief insofar

20   as those claims were based on her religion.     See Paul v.

21   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

22       For the foregoing reasons, the petition for review is

23   DISMISSED in part and DENIED in part.   As we have completed

                                   7
1   our review, the pending motion for a stay of removal in this

2   petition is DISMISSED as moot. Any pending request for oral

3   argument in this petition is DENIED in accordance with

4   Federal Rule of Appellate Procedure 34(a)(2), and Second

5   Circuit Local Rule 34.1(b).

6                                 FOR THE COURT:
7                                 Catherine O’Hagan Wolfe, Clerk
8
9




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