         13-343
         Liu v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A089 097 535
                                                                               A089 097 536


                              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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                DENNIS JACOBS,
 9                PIERRE N. LEVAL,
10                     Circuit Judges.
11       _____________________________________
12
13       YONGFU LIU, YINGMEI YUAN,
14                Petitioners,
15
16                       v.                                     13-343
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONERS:              Khaghendra Gharti-Chhetry, New York,
24                                     New York.
25


         07162014-B1-3
 1   FOR RESPONDENT:              Stuart F. Delery, Assistant Attorney
 2                                General; Cindy S. Ferrier, Assistant
 3                                Director; Sunah Lee, Trial Attorney,
 4                                Office of Immigration Litigation,
 5                                United States Department of Justice,
 6                                Washington, D.C.
 7
 8           UPON DUE CONSIDERATION of this petition for review of a

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

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

11   is DENIED.

12           Petitioners Yongfu Liu and Yingmei Yuan, natives and

13   citizens of the People’s Republic of China, seek review of a

14   January 14, 2013, decision of the BIA, affirming the March

15   10, 2011, decision of Immigration Judge (“IJ”) Sandy K. Hom,

16   denying their application for asylum, withholding of

17   removal, and relief under the Convention Against Torture

18   (“CAT”).        In re Yongfu Liu, Yingmei Yuan, Nos. A089 097 535,

19   A089 097 536 (B.I.A. Jan. 14, 2013), aff’g Nos. A089 097

20   535, A089 097 536 (Immig. Ct. N.Y. City Mar. 10, 2011).        We

21   assume the parties’ familiarity with the underlying facts

22   and procedural history of this case.

23           Under the circumstances of this case, we have reviewed

24   both the IJ’s and the BIA’s opinions “for the sake of

25   completeness.”        Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

26   2008) (quotation marks and citations omitted).       The

     07162014-B1-3                      2
 1   applicable standards of review are well established.          See

 2   8 U.S.C. § 1252(b)(4)(B); see also Jian Hui Shao v. Mukasey,

 3   546 F.3d 138, 157-58 (2d Cir. 2008); Xiu Xia Lin v. Mukasey,

 4   534 F.3d 162, 165-66 (2d Cir. 2008).

 5   I.      Past Persecution

 6           The agency may, considering the totality of the

 7   circumstances, base a credibility finding on inconsistencies

 8   in an applicant’s statements and other record evidence

 9   without regard to whether they go “to the heart of the

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

11   Lin, 534 F.3d at 163-64.        Substantial evidence supports the

12   agency’s determination that petitioners were not credible as

13   to their claim that family planning officials had fined them

14   and beaten Liu on account of Yuan’s pregnancy in violation

15   of China’s coercive population control policy.

16           Petitioners’ statements in their original asylum

17   applications that Yuan was forced to undergo abortion and

18   sterilization procedures were inconsistent with their

19   testimony that she had not undergone such procedures.          See

20   Xiu Xia Lin, 534 F.3d at 167.          Furthermore, they omitted

21   from their original asylum applications their claim that

22   family planning officials beat Liu.          See id. at 166 n.3 (“An


     07162014-B1-3                      3
 1   inconsistency and an omission are . . . functionally

 2   equivalent.”).     Petitioners also provided inconsistent

 3   statements and evidence regarding when they were fined for

 4   violating the population control policy.     See Xiu Xia Lin,

 5   534 F.3d at 167.     Neither petitioners, nor their counsel,

 6   provided a compelling explanation for these discrepancies.

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

 8           Having questioned petitioners’ credibility, the agency

 9   reasonably relied further on their failure to provide

10   certain evidence corroborating their claim.     See Biao Yang

11   v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).     Given the

12   inconsistency and corroboration findings, the agency’s

13   adverse credibility determination is supported by

14   substantial evidence.     See 8 U.S.C. § 1158(b)(1)(B)(iii);

15   see also Xiu Xia Lin, 534 F.3d at 167.     Because the

16   credibility determination is dispositive, we need not reach

17   the agency’s alternative finding that, even if credible,

18   petitioners failed to show that the harm they suffered

19   constituted persecution.

20   II. Well-Founded Fear of Persecution

21           For largely the same reasons as this Court set forth in

22   Jian Hui Shao, 546 F.3d 138, we find no error in the


     07162014-B1-3                   4
 1   agency’s determination that petitioners failed to

 2   demonstrate a well-founded fear of future persecution for

 3   their alleged violation of China’s population control

 4   program.         See id. at 158-72.

 5          For the foregoing reasons, the petition for review is

 6   DENIED.         Any pending request for oral argument in this

 7   petition is DENIED in accordance with Federal Rule of

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

 9   34.1(b).

10                                     FOR THE COURT:
11                                     Catherine O’Hagan Wolfe, Clerk
12
13
14




     07162014-B1-3                         5
