     16-3209
     Liu v. Sessions
                                                                                   BIA
                                                                              Rohan, IJ
                                                                           A205 894 814

                            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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 9th day of July, two thousand eighteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            GUIDO CALABRESI,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   FENGBAO LIU,
14            Petitioner,
15
16                     v.                                        16-3209
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Louis H. Klein, The Kasen Law Firm,
24                                     PLLC, Flushing, NY.
25
26   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
27                                     Attorney General; Leslie McKay,
28                                     Senior Litigation Counsel; Margot
29                                     L. Carter, Trial Attorney, Office
30                                     of Immigration Litigation, United
31                                     States   Department  of  Justice,
32                                     Washington, DC.
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 Fengbao Liu, a native and citizen of the

6    People’s Republic of China, seeks review of a September 1,

7    2016, decision of the BIA affirming a June 9, 2015, decision

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

9    asylum,       withholding       of   removal,   and   relief    under    the

10   Convention Against Torture (“CAT”).              In re Fengbao Liu, No.

11   A 205 894 814 (B.I.A. Sept. 1, 2016), aff’g No. A 205 894 814

12   (Immig. Ct. N.Y. City June 9, 2015).              We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15          Under the circumstances of this case, we have reviewed

16   both the IJ’s and BIA’s decisions. Yun-Zui Guan v. Gonzales,

17   432 F.3d 391, 394 (2d Cir. 2005).               The applicable standards

18   of     review      are      well      established.        See      8 U.S.C.

19   § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-

20   66 (2d Cir. 2008).

21          The governing REAL ID Act credibility standard provides

22   that    the    agency    must    “[c]onsider[]    the   totality    of   the

                                             2
1    circumstances,”         and   may   base     a     credibility     finding   on

2    inconsistencies or omissions within or between his and his

3    witness’s written and oral statements, “without regard to

4    whether”    any    inconsistencies           go    “to    the   heart   of   the

5    applicant’s claim.”           8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia

6    Lin, 534 F.3d at 163-64, 166-67.              “[E]ven where an IJ relies

7    on   discrepancies       or    lacunae     that,     if    taken   separately,

8    concern matters collateral or ancillary to the claim, the

9    cumulative effect may nevertheless be deemed consequential by

10   the fact-finder.”        Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d

11   Cir. 2006) (internal citation and quotation marks omitted

12   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.”

15   Xiu Xia Lin, 534 F.3d at 167.

16        Initially, as the Government observes, Liu has both

17   waived and failed to exhaust challenges to the specific

18   inconsistency findings underlying the adverse credibility

19   determination.      Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

20   104, 122 (2d Cir. 2007) (explaining that issue exhaustion is

21   mandatory); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.

22   1998) (“Issues not sufficiently argued in the briefs are

                                           3
1    considered waived and normally will not be addressed on

2    appeal.”).      These findings, which relate to the dates Liu’s

3    wife    went   into   hiding,   when      his   wife’s   forced   abortion

4    occurred, and when his friend was arrested for distributing

5    anti-government leaflets, are supported by the record and

6    stand as appropriate bases for the credibility determination.

7    See Shunfu Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir. 2008).

8           Moreover, Liu’s challenges to the adverse credibility

9    determination fail.          First, Liu argues that he testified

10   consistently with his application.                 But his argument is

11   misplaced because the agency reasonably based the adverse

12   credibility determination on internal inconsistencies in his

13   testimony.      8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

14   F.3d at 163-64. Second, although a discrepancy in dates need

15   not be fatal if “minor and isolated,” Diallo v. INS, 232 F.3d

16   279,    288    (2d   Cir.   2000),   Liu’s      date   discrepancies   were

17   extensive and called into question his familiarity with the

18   timeline of his own claim.           Third, Liu now asserts that the

19   inconsistencies are explained by nervousness and his lack of

20   education.       In addition to Liu’s failure to exhaust these

21   explanations, the IJ would not have been compelled to accept

22   them. Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A

                                           4
1    petitioner must do more than offer a plausible explanation

2    for his inconsistent statements to secure relief; he must

3    demonstrate that a reasonable fact-finder would be compelled

4    to    credit    his     testimony.”       (internal    quotation    marks

5    omitted)); cf. Yun-Zui Guan, 432 F.3d at 397 n.6 (finding

6    that applicant’s “mere recitation that he was nervous or felt

7    pressured during an airport interview will not automatically

8    prevent the IJ or BIA from relying [o]n statements in such

9    interviews when making adverse credibility determinations”).

10         While Liu also contends that additional corroboration

11   was not reasonably available, the agency did not deny relief

12   for failure to submit corroborating evidence.                See 8 U.S.C.

13   § 1158(b)(1)(B)(ii) (“Where the trier of fact determines that

14   the   applicant   should      provide     evidence    that   corroborates

15   otherwise credible testimony, such evidence must be provided

16   unless the applicant does not have the evidence and cannot

17   reasonably     obtain   the   evidence.”).       Instead,     the   agency

18   concluded that Liu’s corroborating evidence was insufficient

19   to rehabilitate his credibility or independently satisfy his

20   burden of proof given the lack of detail in the letters he

21   submitted. This was a reasonable determination that Liu does

22   not challenge here. See Biao Yang v. Gonzales, 496 F.3d 268,

                                           5
1    273 (2d Cir. 2007) (“An applicant’s failure to corroborate

2    his or her testimony may bear on credibility, because the

3    absence of corroboration in general makes an applicant unable

4    to rehabilitate testimony that has already been called into

5    question.”); see also Y.C. v. Holder, 741 F.3d 324, 332 (2d

6    Cir. 2013) (“We generally defer to the agency’s evaluation of

7    the   weight    to     be    afforded        an    applicant’s      documentary

8    evidence.”).

9          Given    the    foregoing     inconsistency          and     corroboration

10   findings,      we     conclude      that         the     adverse    credibility

11   determination        is     supported       by     the    “totality      of   the

12   circumstances.”        Xiu Xia Lin, 534 F.3d at 167.                The adverse

13   credibility         determination       is        dispositive       of   asylum,

14   withholding of removal, and CAT relief because all three

15   claims are based on the same factual predicate.                     See Paul v.

16   Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

17         For the foregoing reasons, the petition for review is

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

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

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

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

22   in this petition is DENIED in accordance with Federal Rule of

                                             6
1   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2   34.1(b).

3                         FOR THE COURT:
4                         Catherine O’Hagan Wolfe
5                         Clerk of Court




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