     15-4009
     Liu v. Sessions
                                                                                       BIA
                                                                                   Sichel, IJ
                                                                               A087 785 397
                            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.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   22nd day of February, two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            ROSEMARY S. POOLER,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   ZHENGLONG LIU,
14            Petitioner,
15
16                     v.                                            15-4009
17                                                                   NAC
18   JEFF SESSIONS, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.1
21   _____________________________________
22
23   FOR PETITIONER:                     Gary J. Yerman, Yerman & Jia, LLC,
24                                       New York, N.Y.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; John S.
28                                       Hogan, Assistant Director; Mona

     1
       Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
     Attorney General Jeff Sessions is automatically substituted for
     former Attorney General Loretta E. Lynch as Respondent.
1                               Maria Yousif, Trial Attorney, Office
2                               of 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 is

9    DENIED.

10       Petitioner Zhenglong Liu, a native and citizen of China,

11   seeks review of a November 17, 2015, decision of the BIA

12   affirming an April 4, 2014, decision of an Immigration Judge

13   (“IJ”) denying Liu’s application for asylum, withholding of

14   removal, and relief under the Convention Against Torture

15   (“CAT”). In re Zhenglong Liu, No. A087 785 397 (B.I.A. Nov. 17,

16   2015), aff’g No. A087 785 397 (Immig. Ct. N.Y. City Apr. 4,

17   2014). We assume the parties’ familiarity with the underlying

18   facts and procedural history in this case.

19       Under the circumstances of this case, we have reviewed both

20   the BIA’s and IJ’s decisions. Yun-Zui Guan v. Gonzales, 432 F.3d

21   391, 394 (2d Cir. 2005). The applicable standards of review are

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

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

24       The governing REAL ID Act credibility standard provides

25   that the agency may, “[c]onsidering the totality of the

                                    2
1    circumstances,” base a credibility finding on an applicant’s

2    “demeanor, candor, or responsiveness,” the plausibility of his

3    account, and inconsistencies in his statements and other record

4    evidence “without regard to whether” those inconsistencies go

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

6    § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534 F.3d at 163-64.

7    “[E]ven where an IJ relies on discrepancies or lacunae that,

8    if taken separately, concern matters collateral or ancillary

9    to the claim, the cumulative effect may nevertheless be deemed

10   consequential by the fact-finder.”   Tu Lin v. Gonzales, 446

11   F.3d 395, 402 (2d Cir. 2006) (internal quotation marks and

12   citations omitted). “We defer . . . to an IJ’s credibility

13   determination unless . . . it is plain that no reasonable

14   fact-finder could make such an adverse credibility ruling.” Xiu

15   Xia Lin, 534 F.3d at 167. Further, “[a] petitioner must do more

16   than offer a plausible explanation for his inconsistent

17   statements to secure relief; he must demonstrate that a

18   reasonable fact-finder would be compelled to credit his

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

20   (internal quotation marks and citation omitted; emphasis in

21   original). For the reasons that follow, we conclude that




                                   3
1    substantial evidence supports the agency’s determination that

2    Liu was not credible.

3        First,     the   agency   reasonably   based   the   credibility

4    determination on Liu’s omission of his mother-in-law’s phone

5    call from his application. See Xiu Xia Lin, 534 F.3d at 166-67

6    & n.3 (“An inconsistency and an omission are . . . functionally

7    equivalent” for credibility purposes.). Liu testified that his

8    wife returned from hiding because his mother-in-law had called

9    her and told her that Liu was detained. However, Liu omitted

10   any mention of this call from his application statement. The

11   IJ considered Liu’s explanation that he relayed only the main

12   points of what happened in his statement, but was not compelled

13   to accept it. See Majidi, 430 F.3d at 80. Although Liu contends

14   that this was a minor omission, the agency was entitled to rely

15   on it in support of the credibility determination. Tu Lin, 446

16   F.3d at 402.

17       Second, the agency reasonably based the credibility

18   determination on inconsistencies among Liu’s testimony and

19   application concerning the payment to police. See Xiu Xia Lin,

20   534 F.3d at 163-64, 166-67. Liu testified that his in-laws came

21   to the detention center and paid a 5,000 RMB fine to secure his

22   release; he later testified that this payment was a bail bond.


                                       4
1    However, Liu stated in his application that he and his wife were

2    fined 5,000 RMB after he was released from detention. When Liu

3    was asked why his application statement omitted any mention of

4    his in-laws paying the fine, he responded that his statement

5    was supposed to include this information. When asked to clarify,

6    because his statement indicated that he was fined after his

7    release, Liu did not respond directly. When again asked to

8    explain, he stated that he simplified his written statement and

9    that his in-laws paid the fine because he was unable to pay.

10   The IJ explicitly considered Liu’s explanations, but was not

11   compelled to accept them because they did not explain the

12   inconsistencies. See Majidi, 430 F. 3d at 80.

13       Third,   the   agency   reasonably   based   the   credibility

14   determination on an inconsistency between Liu’s testimony and

15   application regarding how long his wife had been pregnant when

16   she went into hiding. See Xiu Xia Lin, 534 F.3d at 163-64,

17   166-67. Liu testified that his wife discovered her pregnancy

18   at the beginning of May 1993, when she had been pregnant for

19   40 days, and went into hiding a week later for about ten days.

20   However, Liu stated in his application that his wife went into

21   hiding after discovering she was three months’ pregnant. When

22   Liu was confronted with this discrepancy, he stated that his


                                     5
 1   wife had told him that she was three months’ pregnant, but that

 2   later the hospital provided a more precise diagnosis of 40 days.

 3   Liu next explained that he did not have the hospital’s diagnosis

 4   with him when he wrote his application statement, but he later

5    explained that his application statement was inaccurate because

6    he did not pay much attention to these details. The IJ considered

7    Liu’s explanations, but reasonably found them unpersuasive. See

8    Majidi, 430 F.3d at 80.

9        Given the agency’s foregoing inconsistency findings and

10   proper rejection of Liu’s corresponding explanations, the

11   totality of the circumstances supports the adverse credibility

12   determination. See Xiu Xia Lin, 534 F.3d at 165-66; Tu Lin, 446

13   F.3d at 402. A reasonable fact-finder would not be compelled

14   to conclude otherwise. Xiu Xia Lin, 534 F.3d at 167. The

15   credibility finding is dispositive of asylum, withholding of

16   removal, and CAT relief because all three claims are based on

17   the same factual predicate. See Paul v. Gonzales, 444 F.3d 148,

18   156-57 (2d Cir. 2006).

19       For the foregoing reasons, the petition for review is

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

21   that the Court previously granted in this petition is VACATED.

22   Any pending request for oral argument in this petition is DENIED


                                    6
1   in   accordance   with   Federal   Rule   of   Appellate   Procedure

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

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




                                       7
