         10-5063-ag
         Liu v. Holder
                                                                                         BIA
                                                                                  LaForest, IJ
                                                                                 A088 517 178
                          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 24th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                ROSEMARY S. POOLER,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       WENXIN LIU, a.k.a. WEN XING LIU,
14                Petitioner,
15
16                       v.                                        10-5063-ag
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Gerald Karikari, New York, New York.
24
25       FOR RESPONDENT:                Tony West, Assistant Attorney
26                                      General; Russel J.E. Verby, Senior
27                                      Litigation Counsel; Jennifer P.
28                                      Levings, Senior Litigation Counsel,
29                                      Office of Immigration Litigation,
30                                      United States Department of Justice,
31                                      Washington, D.C.
 1
 2       UPON DUE CONSIDERATION of this petition for review of a

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

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

 5   is DENIED.

 6       Wenxin Liu, a native and citizen of the People’s

 7   Republic of China, seeks review of the November 18, 2010,

 8   order of the BIA affirming the November 21, 2008, decision

 9   of Immigration Judge (“IJ”) Brigitte LaForest, which denied

10   his applications for asylum, withholding of removal, and

11   relief under the Convention Against Torture (“CAT”).     In re

12   Wenxin Liu, No. A088 517 178 (B.I.A. Nov. 18, 2010), aff’g

13   No. A088 517 178 (Immig. Ct. N.Y. City Nov. 21, 2008).     We

14   assume the parties’ familiarity with the underlying facts

15   and procedural history in this case.

16       Under the circumstances of this case, we review the

17   decision of the IJ as supplemented by the BIA.   See Yan Chen

18   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).   The

19   applicable standards of review are well-established.     See

20   8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder,

21   562 F.3d 510, 513 (2d Cir. 2009).

22       For asylum applications, such as Liu’s, governed by the

23   amendments made to the Immigration and Nationality Act by

                                  2
 1   the REAL ID Act of 2005, the agency may, considering the

 2   totality of the circumstances, base a credibility finding on

 3   an asylum applicant’s “demeanor, candor, or responsiveness,”

 4   the plausibility of his or her account, and inconsistencies

 5   in his or her statements, without regard to whether they go

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

 7   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

 8   167 (2d Cir. 2008).   We will “defer . . . to an IJ’s

 9   credibility determination unless, from the totality of the

10   circumstances, it is plain that no reasonable fact-finder

11   could make” such a ruling.   Xiu Xia Lin, 534 F.3d at 167.

12   In this case, the IJ reasonably based her adverse

13   credibility determination on Liu’s disparate claims, the

14   inconsistencies in his testimony, and the lack of convincing

15   corroborative evidence.

16       Liu testified that several Chinese policemen arrested,

17   confined, and beat him for seven days after finding him

18   watching Falun Gong discs.   Yet, as he admitted in his

19   asylum application, he offered an entirely different, and

20   false, claim during a credible fear interview, initially

21   attesting that Chinese government officials beat him after

22   he sought compensation from the government.   Liu also


                                   3
 1   alleged that he practiced Falun Gong regularly in the United

 2   States, but when questioned as to why his friends refused to

 3   submit affidavits, he gave conflicting testimony as to

 4   whether his fellow Falun Gong practitioners had immigration

 5   status in the United States.

 6       The IJ properly relied on these inconsistencies and

 7   lack of corroborative evidence to discredit Liu’s

 8   explanation and find him not credible.   See 8 U.S.C.

 9   § 1158(b)(1)(B)(iii); Yun-Zui Guan v. Gonzales, 432 F.3d

10   391, 398-99 (2d Cir. 2005) (holding that where “immigration

11   officials have been presented with two materially different

12   asylum claims, it is entirely appropriate for a factfinder

13   to rely on this evidence as a basis for determining whether

14   a petitioner was actually persecuted in the manner asserted”

15   (internal quotations omitted)); Majidi v. Gonzales, 430 F.3d

16   77, 80-81 (2d Cir. 2005) (the agency need not credit an

17   applicant’s explanations for inconsistent testimony unless

18   those explanations would compel a reasonable fact finder to

19   do so).

20       Given Liu’s lack of credibility, the agency also

21   reasonably declined to credit the dismissal letter and

22   affidavits Liu submitted, particularly as the preparers were


                                    4
 1   not available for cross-examination.   See Siewe v. Gonzales,

 2   480 F.3d 160, 170 (2d Cir. 2007) (“a single instance of

 3   false testimony may . . . infect the balance of the alien’s

 4   uncorroborated or unauthenticated evidence”).    Although Liu

 5   argues that the IJ failed to consider the photographs of his

 6   Falun Gong practice, the IJ sufficiently acknowledged the

 7   photographs by accepting them into evidence.    See Wei Guang

 8   Wang v. BIA, 437 F.3d 270, 273-75 (2d Cir. 2006); Xiao Ji

 9   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n.17 (2d

10   Cir. 2006).   The totality of the circumstances therefore

11   supports the agency’s adverse credibility determination, and

12   we defer to that finding.   See 8 U.S.C.

13   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

14   Furthermore, because the only evidence of a threat to Liu’s

15   life or freedom, or that he was likely to be tortured,

16   depended upon his credibility, the adverse credibility

17   determination in this case necessarily precludes success on

18   his claims for withholding of removal and CAT relief.     See

19   Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong

20   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.

21   2005).




                                   5
1       For the foregoing reasons, the petition for review is

2   DENIED.

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




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