         10-2476-ag
         Liu v. Holder
                                                                                       BIA
                                                                                Schoppert, IJ
                                                                               A099 034 766


                          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 27th day of September, two thousand eleven.
 5
 6       PRESENT:
 7                JOSEPH M. MCLAUGHLIN,
 8                GUIDO CALABRESI,
 9                RICHARD C. WESLEY,
10                        Circuit Judges.
11       _____________________________________
12
13       YI MEI LIU
14                Petitioner,
15
16                       v.                                     10-2476-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Yi Mei Liu, pro se, Brooklyn, NY.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; David V. Bernal, Assistant
27                                     Director; Lauren E. Fascett, Trial
28                                     Attorney, Office of Immigration
29                                     Litigation, United States Department
30                                     of Justice, Washington, 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 DENIED.

 5       Petitioner Yi Mei Liu, a native and citizen of the

 6   People’s Republic of China, seeks review of a May 27, 2010,

 7   order of the BIA, affirming the September 11, 2008, decision

 8   of Immigration Judge (“IJ”) Douglas B. Schoppert, which

 9   denied her application for asylum, withholding of removal,

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

11   re Yi Mei Liu, No. A099 034 766 (B.I.A. May 27, 2010), aff’g

12   No. A099 034 766 (Immig. Ct. N.Y. City Sept. 11, 2008).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

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

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

18   2008) (per curiam).    The applicable standards of review are

19   well-established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

20   v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).    For

21   applications, such as this one, governed by the REAL ID Act

22   of 2005, the agency may, considering the totality of the

23   circumstances, base a credibility finding on an asylum

                                     2
 1   applicant’s demeanor, the plausibility of his account, and

 2   inconsistencies in his statements, without regard to whether

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

 4   § 1158(b)(1)(B)(iii); see also Matter of J-Y-C-, 24 I. & N.

 5   Dec. 260, 265 (BIA 2007).   Analyzed under the REAL ID Act,

 6   the agency’s adverse credibility determination is supported

 7   by substantial evidence.

 8       In finding Liu not credible, the IJ relied in part on

 9   her demeanor, noting that she testified “in a somewhat rote

10   manner,” her testimony “at times . . . closely track[ed her]

11   written statement,” and “she did not . . . appear to be

12   testifying from her memory of actual events through which

13   she had lived but, rather, from a script.”   Because the IJ

14   was in the best position to observe Liu’s manner while

15   testifying, we accord his demeanor finding particular

16   deference.   See Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74

17   (2d Cir. 2004), overruled on other grounds by Shi Liang Lin

18   v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007).

19   Moreover, because the IJ identified other reasons to doubt

20   Liu’s credibility, we may confidently rely on the IJ’s

21   demeanor finding.   See Li Hua Lin v. U.S. Dep’t of Justice,

22   453 F.3d 99, 109 (2d Cir. 2006).


                                   3
 1       In finding Liu not credible, the agency also reasonably

 2   relied on the fact that Liu’s testimony before the IJ was

 3   inconsistent with her testimony during her credible fear

 4   interview.     See Diallo v. Gonzales, 445 F.3d 624, 632-33 (2d

 5   Cir. 2006).    The summary of Liu’s credible fear interview

 6   reflects that her employer accused her of distributing Falun

 7   Gong material even though Liu, as a Buddhist, had neither an

 8   understanding of, nor an interest in, Falun Gong.     She

 9   testified, in contrast, that she supported Falun Gong in

10   China by telling people of the benefits of its practice,

11   which resulted in her arrest, detention, and beating by

12   village cadres.

13       We have cautioned that when discrepancies arise from an

14   applicant’s statements in an airport or credible fear

15   interview, the agency must closely examine the record of the

16   interview to ensure that it represents a “sufficiently

17   accurate record” of the applicant’s statements to merit

18   consideration in determining whether the applicant is

19   credible.     Ming Zhang v. Holder, 585 F.3d 715, 723-25 (2d

20   Cir. 2009); Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d

21   Cir. 2004).    Here, the IJ assessed the probative value of

22   Liu’s credible fear interview, noting that Liu acknowledged


                                     4
 1   that she had testified falsely under oath that she had no

 2   interest in Falun Gong.   In addition, in her asylum

 3   application, Liu expressly conceded the inconsistencies

 4   between her original statement and her revised account.

 5   Because Liu acknowledged the discrepancy, our concerns

 6   regarding the agency’s reliance on the summary of the

 7   credible fear interview are ameliorated.   See Diallo, 445

 8   F.3d at 633 & n.3.

 9       Although Liu explained that she lied during her

10   credible fear interview because the smuggler instructed her

11   to do so, the agency was not required to credit the

12   explanation.   See Yun-Zui Guan v. Gonzales, 432 F.3d 391,

13   397 n.6, 399 n.8 (2d Cir. 2005) (per curiam); Majidi v.

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

15   given the material differences between Liu’s original

16   statement and her testimony, as well as the demeanor

17   finding, substantial evidence supports the agency’s

18   determination that Liu’s testimony was not credible.     See

19   Yun-Zui Guan, 432 F.3d at 400.

20       The agency further found that even if it accepted Liu’s

21   testimony that she had begun practicing Falun Gong in the

22   United States, she failed to demonstrate a well-founded fear

23   of persecution.   We have explained that absent evidence of
                                   5
 1   past persecution “an alien must make some showing that

 2   authorities in his country of nationality are either aware

 3   of his activities or likely to become aware of his

 4   activities.”   Hongsheng Leng v. Mukasey, 528 F.3d 135, 143

 5   (2d Cir. 2008) (per curiam).    As the IJ noted, Liu testified

 6   that she practiced Falun Gong only at home alone and that

 7   she would not continue to practice Falun Gong in China.

 8   Accordingly, Liu failed to demonstrate a well-founded fear

 9   of persecution on account of her practice of Falun Gong in

10   the United States.   See id. at 142-43.   Because the adverse

11   credibility determination is dispositive of Liu’s claim of

12   past persecution, and because she failed to demonstrate a

13   well-founded fear of future persecution, the agency’s denial

14   of asylum and withholding of removal was reasonable.     See

15   Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir. 2007)

16   (recognizing that the standard for withholding of removal is

17   higher than that for asylum).

18       For the foregoing reasons, the petition for review is

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

20   removal that the Court previously granted in this petition

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

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

23   oral argument in this petition is DENIED in accordance with
                                     6
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

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




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