         10-5117-ag
         Liu v. Holder
                                                                                      BIA
                                                                             Balasquide, IJ
                                                                             A099 936 294
                          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 17th day of February, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                RAYMOND J. LOHIER, JR.,
10                SUSAN L. CARNEY,
11                     Circuit Judges.
12       _______________________________________
13
14       BI CHUN LIU,
15                Petitioner,
16
17                       v.                                   10-5117-ag
18                                                            NAC
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL
22                Respondent.
23       ______________________________________
24
25       FOR PETITIONER:               Adedayo O. Idowu, New York, New
26                                     York.
27
28       FOR RESPONDENT:               Tony West, Assistant Attorney
29                                     General; David V. Bernal, Assistant
                                               1
 1                          Director; Tiffany L. Walters, Trial
 2                          Attorney, Office of Immigration
 3                          Litigation, Civil Division, United
 4                          States Department of Justice,
 5                          Washington, D.C.
 6
 7       UPON DUE CONSIDERATION of this petition for review of a

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

 9   ORDERED, ADJUDGED, AND DECREED that the petition for review

10   is DISMISSED in part and DENIED in part.

11       Petitioner Bi Chun Liu, a native and citizen of China,

12   seeks review of a November 19, 2010 order of the BIA

13   affirming the November 24, 2008 decision of Immigration

14   Judge (“IJ”) Javier Balasquide denying his application for

15   asylum, withholding of removal, and relief under the

16   Convention Against Torture (“CAT”). In re Bi Chun Liu, No.

17   A099 936 294 (B.I.A. Nov. 19, 2010), aff’g No. A099 936 294

18   (Immig. Ct. N.Y. City Nov. 24, 2008). We assume the parties’

19   familiarity with the underlying facts and procedural history

20   in this case.

21       Under the circumstances of this case, we have reviewed

22   the IJ’s decision as supplemented by the BIA. See Yan Chen

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

                                  2
 1   applicable standards of review are well-established. See

 2   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

 3   510, 513 (2d Cir. 2009).

 4       We lack jurisdiction to consider Liu’s challenge to the

 5   pretermission of his asylum application because he

 6   essentially disputes the correctness of the IJ’s factual

 7   findings concerning his date of entry. See Li Hua Lin v.

 8   U.S. Dep’t of Justice, 453 F.3d 99, 104 (2d Cir. 2006); Xiao

 9   Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 328-29 (2d

10   Cir. 2006). Accordingly, we dismiss the petition for review

11   as to asylum and address only Liu’s challenges to the denial

12   of withholding of removal and CAT relief.

13       For applications such as Liu’s, governed by the REAL ID

14   Act, the agency may, considering the totality of the

15   circumstances, base a credibility finding on an applicant’s

16   demeanor, the plausibility of his account, or

17   inconsistencies in his statements, without regard to whether

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

19   § 1158(b)(1)(B)(iii). Substantial evidence supports the

20   agency’s adverse credibility determination.

                                  3
 1       The IJ reasonably found implausible Liu’s testimony

 2   that he arrived in the United States in October 2006, given

 3   his other testimony that he contacted a coworker about

 4   possibly leaving China approximately six months after May

 5   2006 and then took three additional months to save for a

 6   smuggling fee before leaving. See 8 U.S.C.

 7   § 1158(b)(1)(B)(iii). As the IJ expressly requested an

 8   explanation of Liu’s timeline of events and Liu did not

 9   explain to the IJ that he concurrently saved for a fee,

10   Liu’s current assertion that he did so does not compel a

11   contrary conclusion. See Majidi v. Gonzales, 430 F.3d 77, 80

12   (2d Cir. 2005) (“A petitioner must do more than offer a

13   plausible explanation for his inconsistent statements to

14   secure relief; he must demonstrate that a reasonable

15   fact-finder would be compelled to credit his testimony.”)

16   (internal citation omitted).

17       Additionally, the IJ reasonably noted that Liu’s

18   testimony lacked detail because, when asked, he was unable

19   to estimate the number of officers who came to arrest him,




                                    4
 1   how many vehicles they brought, or how long he was beaten.

 2   Liu’s explanation, that he was under extreme fear, does not

 3   compel a contrary conclusion. See Majidi, 430 F.3d at 80.

 4        Moreover, the agency reasonably found that Liu’s

 5   testimony that his wife suffered a forcible abortion was

 6   undermined by the medical evidence he submitted, which

 7   indicated that she requested an abortion.     Liu’s explanation

 8   that the Chinese authorities forced his wife to state that

 9   she had requested the abortion does not compel the contrary

10   conclusion, see id., particularly in light of the agency’s

11   observation that the State Department has concluded that

12   China does not issue abortion certificates or other

13   documentation of forced abortions, see Xiao Xing Ni v.

14   Gonzales, 494 F.3d 260, 263 (2d Cir. 2007).

15        Additionally, the agency reasonably found that Liu’s

16   statement before the asylum officer that he ran out of the

17   family planning center when he was released was inconsistent

18   with his later testimony that he did not.1     See Xiu Xia Lin

          1
            While Liu argues that the IJ erred in relying on the
     asylum officer’s notes, because he failed to raise this challenge


                                    5
 1   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (“[A]n IJ may

 2   rely on any inconsistency or omission in making an adverse

 3   credibility determination as long as the ‘totality of the

 4   circumstances’ establishes that an asylum applicant is not

 5   credible”) (emphasis in original).

 6        Because the REAL ID Act permits the agency to base a

 7   credibility finding on implausibilities and inconsistencies

 8   such as these, Liu’s argument that the record compels

 9   reversal is unavailing. See 8 U.S.C. § 1158(b)(1)(B)(iii).

10   Because Liu’s claims all were based on the same factual

11   predicate, the agency’s adverse credibility determination is

12   dispositive of both withholding of removal and CAT relief.

13   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

14        For the foregoing reasons, the petition for review is

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

16   our review, any stay of removal that the Court previously

17   granted in this petition is VACATED, and any pending motion



     before the BIA we decline to consider Liu’s argument. See Lin
     Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122, 124 (2d Cir.
     2007).


                                    6
1   for a stay of removal in this petition is DISMISSED as moot.

2   Any pending request for oral argument in this petition is

3   DENIED in accordance with Federal Rule of Appellate

4   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

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




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