        11-3003-ag
        Liu v. Holder
                                                                                       BIA
                                                                                    Bain, IJ
                                                                               A087 462 999
                              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 23rd day of September, two thousand thirteen.
 5
 6      PRESENT:
 7                          PIERRE N. LEVAL,
 8                          ROSEMARY S. POOLER,1
 9
10                             Circuit Judges.
11      _____________________________________
12
13      REN DUAN LIU,
14               Petitioner,
15
16                           v.                                11-3003-ag
17                                                             NAC
18      ERIC H. HOLDER, JR., UNITED STATES
19      ATTORNEY GENERAL,
20               Respondent.
21      _____________________________________
22
23      FOR PETITIONER:                   Troy Nader Moslemi, Moslemi and
24                                        Associates, New York, N.Y.
25
26      FOR RESPONDENT:                   Tony West, Assistant Attorney
27                                        General; Ernesto H. Molina, Jr.,
28                                        Assistant Director; Nancy N. Safavi,

                        1
                  Pursuant to Second Circuit Internal Operating
            Procedure E(b), the matter is being decided by two
            judges.
 1                          Trial Attorney, Office of
 2                          Immigration Litigation, United
 3                          States Department of Justice,
 4                          Washington, D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10       Ren Duan Liu, a native and citizen of the People’s

11   Republic of China, seeks review of a June 29, 2011, order of

12   the BIA, affirming the July 8, 2009, decision of Immigration

13   Judge (“IJ”) Quynh Vu Bain, which denied his application for

14   asylum, withholding of removal, and relief under the

15   Convention Against Torture.    In re Ren Duan Liu, No. A087

16   462 999 (B.I.A. June 29, 2011), aff’g No. A087 462 999

17   (Immig. Ct. N.Y. City July 8, 2009).   We assume the parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

20       Because Liu filed his application for relief after May

21   11, 2005, we apply the credibility standard imposed by the

22   REAL ID Act of 2005 (“REAL ID Act”), Pub. L. No. 109-13,

23   Div. B. 119 Stat 302 (2005).   Under that standard,

24   considering the totality of the circumstances, an IJ may

25   base an adverse credibility determination on any


                                    2
 1   inconsistencies or inaccuracies in an asylum applicant’s

 2   statements without regard to whether they go “to the heart

 3   of the applicant’s claim.”     8 U.S.C. § 1158(b)(1)(B)(iii).

 4   Where, as here, “the BIA agrees with an IJ’s adverse

 5   credibility determination and adopts particular parts of the

 6   IJ’s reasoning, we review the decisions of both the BIA and

 7   the IJ.”   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 (2d Cir.

 8   2008) (Per curiam).   We review adverse credibility

 9   determinations under the substantial evidence standard,

10   treating them as “conclusive unless any reasonable

11   adjudicator would be compelled to conclude to the contrary.”

12   8 U.S.C. § 1252(b)(4)(B); see Zheng v. Mukasey, 552 F.3d

13   277, 284 (2d Cir. 2009).     Here, substantial evidence

14   supports the agency’s adverse credibility determination.

15       The agency’s adverse credibility determination was

16   based on specific inconsistencies, supported by the

17   administrative record, both within Liu’s testimony and

18   between Liu’s testimony and his asylum application.       In

19   particular, the agency properly concluded that Liu gave

20   inconsistent testimony regarding whether he disclosed to

21   family planning officials where his wife was hiding at the

22   time he was detained and whether he had any contact with


                                     3
 1   family planning officials after his release from detention.

 2   A reasonable fact finder would not be compelled to credit

 3   Liu’s explanation for these inconsistencies.   See Majidi v.

 4   Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

 5       The record also supports the agency’s finding that

 6   while Liu testified that his wife had an IUD inserted after

 7   her second pregnancy had been aborted, Liu’s written asylum

 8   application and his wife’s letter omitted this detail.     See

 9   Xiu Xia Lin, 534 F.3d at 166 n.3 “[An] omission in a

10   document submitted to corroborate the applicant’s testimony,

11   like a direct inconsistency . . . can serve as a proper

12   basis for an adverse credibility determination”).

13       Although Liu argues that the discrepancies were too

14   minor to support an adverse credibility determination, “an

15   IJ may rely on any inconsistency or omission in making an

16   adverse credibility determination as long as the ‘totality

17   of the circumstances’ establishes that an asylum applicant

18   is not credible.”   Id. at 167.

19       The IJ’s decision is not without flaw, in that the IJ

20   erred in finding that Liu’s testimony was inconsistent with

21   his asylum application with respect to whether family

22   planning officials continued to target Liu following his


                                   4
 1   arrival in the United States, but remand would be futile

 2   because “there is no realistic possibility that, absent the

 3   errors, the IJ or BIA would have reached a different

 4   conclusion.”   See Cao He Lin v. U.S. Dep’t of Justice, 428

 5   F.3d 391, 401 (2d Cir. 2005).

 6       Ultimately, because a reasonable fact-finder would not

 7   be compelled to conclude to the contrary, the agency’s

 8   adverse credibility determination was supported by

 9   substantial evidence.   See Xiu Xia Lin, 534 F.3d at 165-66.

10   The adverse credibility determination is dispositive of

11   Liu’s claims for asylum and withholding of removal, as both

12   claims were based on the same factual predicate.     See Paul

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

14       For the foregoing reasons, the petition for review is

15   DENIED.   As we have completed our review, any pending motion

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

17

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




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