     15-213
     Liu v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A200 172 825
                         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   19th day of September, two thousand sixteen.
 5
 6   PRESENT:
 7            REENA RAGGI,
 8            SUSAN L. CARNEY,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   XUN JIAN LIU,
14            Petitioner,
15
16                  v.                                               15-213
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Gary J. Yerman, New York, New
24                                       York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General, Civil
28                                       Division; Cindy Ferrier, Assistant
29                                       Director; Kimberly A. Burdge, Trial
30                                       Attorney, Office of Immigration
31                                       Litigation, United States
32                                       Department of Justice, Washington,
33                                       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 is

4    DENIED.

5          Petitioner Xun Jian Liu, a native and citizen of China,

6    seeks review of a January 6, 2015 decision of the BIA affirming

7    an April 24, 2013 decision of an Immigration Judge (“IJ”)

8    denying Liu’s application for asylum, withholding of removal,

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

10   re Xun Jian Liu, No. A200 172 825 (B.I.A. Jan. 6, 2015), aff’g

11   No.   A200   172   825    (Immig.   Ct.   N.Y.C.   Apr.     24,   2013).

12         Under the circumstances of this case, we review both the

13   BIA and IJ decisions “for the sake of completeness,” Wangchuck

14   v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006),

15   applying well established standards of review, see 8 U.S.C. §

16   1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d

17   Cir. 2008) (reviewing adverse credibility determination for

18   substantial evidence).         In doing so, we assume the parties’

19   familiarity with the underlying facts and procedural history

20   in this case.

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

22   of 2005, the agency may, “[c]onsidering the totality of the

23   circumstances,”    base    a   credibility   finding   on    an   asylum
                                         2
1    applicant’s    “demeanor,       candor,       or    responsiveness,”       the

2    plausibility    of   his     account,      and   inconsistencies     in    his

3    statements    and    other    record       evidence   “without    regard    to

4    whether” the inconsistencies go “to the heart of the applicant’s

5    claim.”   8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin, 534

6    F.3d at 163-64.        “We defer . . . to an IJ’s credibility

7    determination unless, from the totality of the circumstances,

8    it is plain that no reasonable fact-finder could make such an

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

10   Further, “[a] petitioner must do more than offer a plausible

11   explanation for his inconsistent statements to secure relief;

12   he must demonstrate that a reasonable fact-finder would be

13   compelled to credit his testimony.”                Majidi v. Gonzales, 430

14   F.3d 77, 80 (2d Cir. 2005) (internal quotation marks and

15   citations omitted).        By these standards, the agency’s adverse

16   credibility    determination       is        supported    by     substantial

17   evidence.

18       Liu first challenges the factual bases for the agency’s

19   findings of inconsistency.        The agency relied on discrepancies

20   between Liu’s testimony and the record of his asylum interview.

21   An adverse credibility determination may be supported by the

22   record of an asylum interview if the record contains a

23   “meaningful, clear, and reliable summary of the statements made
                                            3
1    by [the applicant] at the interview.”             Diallo v. Gonzales, 445

2    F.3d 624, 632 (2d Cir. 2006) (citation and internal quotation

3    marks   omitted);   see   also   8       U.S.C.    §   1158(b)(1)(B)(iii)

4    (providing that adverse credibility determination may be based

5    on “consistency between the applicant’s . . . written and oral

6    statements (whenever made and whether or not under oath, and

7    considering the circumstances under which the statements were

8    made)”).

9        Liu argues that the interview record is unreliable because

10   it is handwritten, unorganized, and in shorthand.                 However, the

11   notes are legible and the shorthand is easy to understand.

12   Further, the notes are not disorganized, generally following

13   a question-and-answer structure.          These are sufficient indicia

14   of reliability for the agency to have awarded the notes

15   evidentiary weight. Cf. Diallo, 445 F.3d at 632 (deeming

16   unreliable “the informal, personal notations of the asylum

17   officer that were randomly organized, cryptic to all but the

18   note-taker, and partially illegible” (internal quotation marks

19   omitted)).     Although    Liu   claims      that      he   had    difficulty

20   understanding the language used at his asylum interview, the

21   record of the interview does not indicate that Liu had any

22   genuine    difficulty     answering       the     questions        posed   and

23   memorializes his detailed responses.
                                          4
1        As the record is reliable, the agency was entitled to

2    consider the inconsistencies between it and Liu’s testimony.

3    At the interview, Liu stated that his parents were arrested and

4    detained for a month because they were practicing Christians,

5    but at his hearing, Liu testified, first, that his parents were

6    not Christian, but then, that they were Christian, but had

7    suffered no persecution.    Liu also stated during his asylum

8    interview that he had lived with his grandmother after his

9    parents were arrested, but later testified that he had never

10   lived with his grandmother.1 He had no explanation for either

11   of these inconsistencies.     There were also inconsistencies

12   between Liu’s testimony and a letter from his parents regarding

13   whether they tried to persuade him to abandon Christianity after

14   his detention.   Liu’s explanation for this inconsistency was

15   not compelling and, therefore, the agency’s reliance on it was

16   not unreasonable.   See Majidi, 430 F.3d at 80.

17       Liu argues that the IJ failed to consider specific items

18   of documentary evidence that he contends corroborated his

19   testimony.   “[W]e presume that an IJ has taken into account all

     1
      Liu correctly observes that the IJ may have misinterpreted the
     interview notes in making its ruling in this regard, but any
     such misinterpretation was immaterial and remand to correct the
     error would be futile. See Xiao Ji Chen v. U.S. Dep’t of
     Justice, 471 F.3d 315, 339 (2d Cir. 2006) (holding that remand
     is futile when court can “confidently predict” agency would
     reach the same decision absent any errors).
                                    5
1    of the evidence before [her], unless the record compellingly

2    suggests otherwise,” Xiao Ji Chen, 434 F.3d at 159 n.13, and

3    we do not require that the agency “expressly parse or refute

4    on the record each . . . piece of evidence,” Wei Guang Wang v.

5    Bd. of Immigration Appeals, 437 F.3d 270, 275 (2d Cir. 2006).

6    Here, the IJ stated that she “evaluated the evidence in the

7    record” and concluded that it did not resolve the problems with

8    Liu’s credibility.    Indeed, the evidence Liu cites fails to

9    resolve the major inconsistencies in his testimony.   Thus, the

10   record does not “compellingly suggest” that the IJ did not

11   evaluate this evidence, and we identify no error in the failure

12   to mention specific items of evidence here.   Xiao Ji Chen, 434

13   F.3d at 159 n.13.

14       Finally, the agency reasonably relied on differences

15   between Liu’s demeanor on direct and cross-examination.

16   “[D]emeanor is paradigmatically the sort of evidence that a

17   fact-finder is best positioned to evaluate,” Li Zu Guan v. INS,

18   453 F.3d 129, 140 (2d Cir. 2006), and accordingly we give

19   “particular deference to credibility determinations that are

20   based on the adjudicator’s observation of the applicant’s

21   demeanor.”   Jin Chen v. U.S. Dep’t of Justice, 426 F.3d 104,

22   113 (2d Cir. 2005).   Here, the IJ found that Liu testified in

23   “a direct and cogent manner” on direct examination but that,
                                    6
1    on cross-examination, he became “evasive to the point where the

2    Court became concerned that [he] did not understand the

3    interpreter.”    Liu’s argument that his demeanor changed

4    because of language difficulties is refuted by the fact that

5    Liu had little difficulty with questions on direct examination,

6    as well as the IJ’s explicit confirmation at the hearing that

7    Liu’s best language was Mandarin (the language used by the

8    interpreter) and that Liu understood the interpreter.         The

9    statements Liu points to as evidence he did not understand the

10   interpreter are either inapposite or indicate that Liu did, in

11   fact, sufficiently understand the interpreter.

12       Given     these   inconsistency   and   demeanor   findings,   we

13   identify no basis to disturb the IJ’s adverse credibility

14   determination, see Xiu Xia Lin, 534 F.3d at 165-66, which is

15   dispositive of Liu’s claims for asylum, withholding of removal,

16   and CAT relief, see Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

17   Cir. 2006).

18       For the foregoing reasons, the petition for review is

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

20   that the Court previously granted in this petition is VACATED,

21   and any pending motion for a stay of removal in this petition

22   is DISMISSED as moot.     Any pending request for oral argument

23   in this petition is DENIED in accordance with Federal Rule of
                                      7
1   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2   34.1(b).

3                         FOR THE COURT:
4                         Catherine O=Hagan Wolfe, Clerk of Court




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