         14-72
         Liang v. Lynch
                                                                                       BIA
                                                                                 Poczter, IJ
                                                                               A200 816 878
                           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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 15th day of July, two thousand fifteen.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                DENNY CHIN,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       XUNSONG-ZHU LIANG,
14                Petitioner,
15
16                        v.                                    14-72
17                                                              NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,*
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Lewis G. Hu, New York, NY.
24
25


                      *
                  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. as Respondent.
 1   FOR RESPONDENT:          Stuart F. Delery, Assistant Attorney
 2                            General, Civil Division; Leslie
 3                            McKay, Assistant Director; Stefanie
 4                            Notarino Hennes, Trial Attorney,
 5                            Office of Immigration Litigation,
 6                            United 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

12   is DENIED.

13       Xunsong-Zhu Liang, a native and citizen of China, seeks

14   review of a December 17, 2013, decision of the BIA affirming

15   the March 9, 2012, decision of an Immigration Judge (“IJ”)

16   denying his application for asylum, withholding of removal,

17   and relief under the Convention Against Torture (“CAT”).     In

18   re Xunsong-Zhu Liang, No. A200 816 878 (B.I.A. Dec. 17,

19   2013), aff’g No. A200 816 878 (Immig. Ct. N.Y. City Mar. 9,

20   2012).   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

23   considered both the IJ’s and the BIA’s opinions “for the

24   sake of completeness.”    Zaman v. Mukasey, 514 F.3d 233, 237

25   (2d Cir. 2008)(internal quotation marks and citation

26   omitted).    The applicable standards of review are well


                                    2
 1   established.    See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.

 2   Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

 3          For asylum applications, like Liang’s, governed by the

 4   REAL ID Act, the agency may, “[c]onsidering the totality of

 5   the circumstances,” base a credibility finding on an asylum

 6   applicant’s “demeanor, candor, or responsiveness,” the

 7   plausibility of his account, and inconsistencies in his

 8   statements, “without regard to whether” they go “to the

 9   heart of the applicant’s claim,” so long as they reasonably

10   support an inference that the applicant is not credible.        8

11   U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at

12   167.    “We defer therefore to an IJ’s credibility

13   determination unless, from the totality of the

14   circumstances, it is plain that no reasonable fact-finder

15   could make such an adverse credibility ruling.”      Xiu Xia

16   Lin, 534 F.3d at 167.

17          Here, substantial evidence supports the IJ’s finding

18   that Liang was not credible with respect to either past

19   persecution based on his violation of family planning

20   policies or future persecution based on his Christianity.

21          The IJ did not err in basing the adverse credibility

22   determination, in part, on Liang’s demeanor.     See 8 U.S.C.


                                    3
 1   § 1158(b)(1)(B)(iii); Li Zu Guan v. INS, 453 F.3d 129, 140

 2   (2d Cir. 2006) (noting that “demeanor is paradigmatically

 3   the sort of evidence that a fact-finder is best positioned

 4   to evaluate”).    When the Government attorney asked open-

 5   ended questions, Liang omitted basic, crucial aspects of the

 6   claimed persecution on which his application was predicated.

 7   When his own attorney asked more pointed questions, however,

 8   he was able to provide the information from his application.

 9   The IJ was not required to credit Liang’s explanations that

10   he forgot the information or did not understand the

11   Government’s questions, as a reasonable fact finder would

12   not be compelled to accept them.     See Majidi v. Gonzales,

13   430 F.3d 77, 80-81 (2d Cir. 2005).    The demeanor finding is

14   further supported by the IJ’s identification of long pauses

15   that marred Liang’s testimony. Based on our review of the

16   record, Liang’s argument that the pauses reasonably resulted

17   from the Government attorney’s open-ended questions is

18   unconvincing.    Because the record supports the IJ’s demeanor

19   finding, and the IJ was in the best position to observe

20   Liang’s manner while testifying, we afford the finding

21   particular deference.    See Zhou Yun Zhang v. INS, 386 F.3d

22   66, 73-74 (2d Cir. 2004), overruled on other grounds by Shi


                                    4
 1   Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.

 2   2007).

 3       Inconsistencies between Liang’s testimony and asylum

 4   application provide additional support for both the demeanor

 5   finding and the adverse credibility determination as a

 6   whole.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

 7   F.3d at 165-66; Li Hua Lin v. U.S. Dep’t of Justice, 453

 8   F.3d 99, 109 (2d Cir. 2006) (“We can be still more confident

 9   in our review of observations about an applicant’s demeanor

10   where, as here, they are supported by specific examples of

11   inconsistent testimony.”).   Because Liang omitted several

12   important facts, the IJ reasonably concluded that Liang’s

13   testimony was inconsistent with his written application,

14   which set forth those facts in detail.   See Xiu Xia Lin, 534

15   F.3d at 166 n.3 (“An inconsistency and an omission are, for

16   [credibility] purposes, functionally equivalent.”).

17       As the IJ found, Liang was also inconsistent with

18   respect to his claim of religious persecution.   He first

19   testified that his parents still attended the family’s usual

20   church, but, when pressed, he testified that they were no

21   longer attending that church because they were in hiding.

22       Liang’s argument that his direct testimony is credible

23   because it is consistent with statements made during his
                                   5
 1   initial interview is misplaced.     First, this argument does

 2   not resolve the inconsistencies between his testimony in

 3   response to the Government attorney’s questions and his

 4   application and initial interview.     See Majidi, 430 F.3d at

 5   80 (explaining that petitioner’s explanation must not merely

 6   be plausible but rather must compel a reasonable fact-finder

 7   to credit his testimony).     Second, the REAL ID Act allows

 8   the agency to base a credibility finding on “any

 9   inconsistency,” if the totality of the circumstances

10   establishes that the applicant is not credible.     Xiu Xia

11   Lin, 534 F.3d at 167 (emphasis in original) (citing 8 U.S.C.

12   § 1158(b)(1)(B)(iii)).

13       The demeanor finding, omissions, and inconsistencies

14   provide substantial support for the IJ’s adverse credibility

15   determination, particularly because they relate directly to

16   the main aspects of Liang’s claimed persecution.     See id.

17   Because the only evidence of a threat to Liang’s life or

18   freedom relied on his credibility, the adverse credibility

19   determination is dispositive of asylum, withholding of

20   removal, and CAT relief.    See Paul v. Gonzales, 444 F.3d

21   148, 156-57 (2d Cir. 2006).

22       For the foregoing reasons, the petition for review is

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

                                     6
 1   removal that the Court previously granted in this petition

 2   is VACATED, and any pending motion for a stay of removal in

 3   this petition is DISMISSED as moot.    Any pending request for

 4   oral argument in this petition is DENIED in accordance with

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

 6   Circuit Local Rule 34.1(b).

 7                                 FOR THE COURT:
 8                                 Catherine O’Hagan Wolfe, Clerk
 9
10




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