    16-406
    Liu v. Sessions
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A077 718 725
                           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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    29th day of June, two thousand seventeen.

    PRESENT:
             GUIDO CALABRESI,
             JOSÉ A. CABRANES,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    DONGKAI LIU,
             Petitioner,

                      v.                                             16-406
                                                                     NAC
    JEFFERSON B. SESSIONS III, UNITED
    STATES ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Gary J. Yerman, Yerman & Jia, LLC,
                                         New York, NY.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Russel
                                         J.E. Verby, Senior Litigation
                                         Counsel; John D. Williams, Trial
                                         Attorney, Office of Immigration
                                         Litigation, United States
                                         Department of Justice, Washington,
                                         DC.
    UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

    Petitioner Dongkai Liu, a native and citizen of the

People’s Republic of China, seeks review of a January 19, 2016,

decision of the BIA, affirming a November 6, 2014, decision of

an Immigration Judge (“IJ”) denying Liu’s application for

asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”).   In re Dongkai Liu, No. A077 718 725

(B.I.A. Jan. 19, 2016), aff’g No. A077 718 725 (Immig. Ct. N.Y.

City Nov. 6, 2014).   We assume the parties’ familiarity with

the underlying facts and procedural history in this case.

    Under the circumstances of this case, we have reviewed both

the IJ’s and the BIA’s opinions “for the sake of completeness.”

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

2006).    The applicable standards of review are well

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

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

    For asylum applications like Liu’s, which are governed by

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

of the circumstances,” base a credibility finding on an

applicant’s “demeanor, candor, or responsiveness,” and on

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inconsistencies in an applicant’s statements and evidence,

“without regard to whether” those inconsistencies go “to the

heart of the applicant’s claim.”   8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.       “We

defer . . . to an IJ’s credibility determination unless, from

the totality of the circumstances, it is plain that no

reasonable fact-finder could make such an adverse credibility

ruling.”   Xiu Xia Lin, 534 F.3d at 167.

    The agency reasonably relied on inconsistencies concerning

the alleged November 2011 phone call from the police warning

Liu to stop attending an underground church.      8 U.S.C.

§ 1158(b)(1)(B)(iii).   Liu first testified that he received

the call at home during his lunch break, but later testified

that he received the call at his parents’ home.   The IJ was not

required to credit Liu’s explanation that this testimony was

actually consistent because he would eventually inherit his

parents’ home as his own because, as explained below, Liu’s

testimony about where he lived was also inconsistent. In order

to prevail after an adverse credibility determination based in

part on a failure to explain an inconsistency, “[a] petitioner

must do more than offer a plausible explanation for his

inconsistent statements to secure relief; he must demonstrate

that a reasonable fact-finder would be compelled to credit his

                               3
testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)

(internal quotation marks omitted). Liu has not made that

showing here.

     The agency also reasonably relied on inconsistencies

concerning Liu’s residence.   Liu testified that he and his wife

lived in housing provided by the factory that employed him.

When asked how his wife was able to remain in factory housing

in July 2012 if he was fired from the factory in January 2012,

he changed his testimony and said that he did not live in factory

housing but that his home “was privately owned.”      C.A.R. 21.

In his brief, he argues that he “never testified that he lived

in factory-owned housing after he was fired,” but that assertion

is contradicted by his testimony. Pet. Br. 13.

    The adverse credibility determination is further bolstered

by the omission in Liu’s wife’s letter of the alleged July 2012

police visits.   “An inconsistency and an omission

are . . . functionally equivalent.” Xiu Xia Lin, 534 F.3d at

166 n.3.   The IJ was not required to credit Liu’s explanation

that his wife told him about the visits over the phone, thereby

making their exclusion from her letter reasonable.   Majidi, 430

F.3d at 80; see also Xiu Xia Lin, 534 F.3d at 166-67 & n.3.

     The IJ’s demeanor finding, to which we defer, further

supports the adverse credibility determination.      Majidi, 430

                                4
F.3d at 81 n.1.   The IJ observed that Liu was evasive and “became

hesitant and unresponsive to certain questions, particularly

with regard to his living situation in China and where he was

when he received an initial phone call from the police.” C.A.R.

53. Liu challenges the demeanor finding on the basis that

neither the IJ nor the Government attorney noted his demeanor

on the record.    The inconsistencies outlined above, however,

support the demeanor finding. We are “more confident in our

review of observations about an applicant’s demeanor where, as

here, they are supported by specific examples of inconsistent

testimony.”   Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99,

109 (2d Cir. 2006); see Majidi, 430 F.3d at 81 n.1.

     Having concluded that Liu was not credible, the agency did

not err in further finding that Liu’s corroborating evidence

was insufficient to rehabilitate his testimony.       “An

applicant’s failure to corroborate his . . . testimony may bear

on credibility, because the absence of corroboration in general

makes an applicant unable to rehabilitate testimony that has

already been called into question.”    Biao Yang v. Gonzales, 496

F.3d 268, 273 (2d Cir. 2007). “We defer to the agency’s

determination of the weight afforded to an alien’s documentary

evidence.” Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013)

     The agency reasonably gave diminished weight to letters

                                 5
from Liu’s wife and friends in China because they were authored

by interested parties not subject to cross-examination.       See

Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)

(agency can give little weight to document drafted by interested

witness not subject to cross examination), rev’d on other

grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).

The IJ also reasonably gave diminished weight the fine receipt

allegedly issued by the Public Security Bureau because it was

unauthenticated and did not identify to what the fine related.

     Given the inconsistencies, the demeanor finding, and Liu’s

lack of reliable corroboration, it cannot be said “that no

reasonable fact-finder could make [an adverse] credibility

ruling.”    Xiu Xia Lin, 534 F.3d at 167.   Because asylum,

withholding of removal, and CAT relief were all based on the

same factual predicate, the adverse credibility determination

resolves all of Liu’s claims.   Paul v. Gonzales, 444 F.3d 148,

156-57 (2d Cir. 2006).

     For the foregoing reasons, the petition for review is

DENIED.    As we have completed our review, the pending motion

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

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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