     Case: 13-60353      Document: 00512616484         Page: 1    Date Filed: 05/02/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                    No. 13-60353                                 FILED
                                  Summary Calendar                            May 2, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
JINQUAN LIU,

                                                 Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A201 089 523


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Jinquan Liu, a native and citizen of China, petitions for review of the
denial of his applications for asylum, withholding of removal, and protection
under the Convention Against Torture. Generally, we have authority to review
only the decision of the Board of Immigration Appeals (BIA), but we will consider the
decision of the immigration judge (IJ) if that decision influenced the BIA’s
determination. Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). Because the



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 13-60353

BIA agreed with the IJ’s findings and conclusions, the IJ’s findings are
reviewable. See Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). Findings of
fact are reviewed for substantial evidence. Wang v. Holder, 569 F.3d 531, 536
(5th Cir. 2009). We may not reverse factual findings unless “the evidence was
so compelling that no reasonable factfinder could conclude against it.” Id. at
537.
        Liu argues that the IJ and the BIA erred in giving little weight to the
documents that he submitted because they were not authenticated.              He
contends that the documents were consistent with his claims and overcame
any inconsistencies in his testimony. The majority of the documents submitted
by Liu were issued by foreign public agencies and were required to be
authenticated in accord with 8 C.F.R. § 287(6)(b)(1). Further, insofar as the
documents were not public documents, the IJ properly gave them minimal
weight because Liu was personally unaware of their content or their source,
and he did not provide the affidavit of any third party to validate the source or
validity of the documents. See Jin Yau Chen v. Holder, ___ F. App’x ___, 2013
WL 6069399 (5th Cir. Nov. 19, 2013) (citing Gen Lin v. Attorney General U.S.,
700 F.3d 683, 688 (3d Cir. 2012)). Liu cannot rely on his counsel’s failure to
have the documents authenticated because Liu did not raise a claim of
ineffective assistance of counsel in his appeal to the BIA; thus, we lack
jurisdiction to consider that issue. See Hernandez-Ortiz v. Holder, 741 F.3d
644, 648 (5th Cir. 2014). There is substantial evidence in the record to support
the IJ’s determination that the documents submitted by Liu were not entitled
to more than minimal weight.
        According to Liu, the IJ erred in making an adverse credibility finding
based on the inconsistencies between his narrative statement and his wife’s
statement in support of his applications and his testimony and his failure to



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                                    No. 13-60353

provide relevant documentary evidence that should have been reasonably
available to him. He contends that the IJ did not give proper consideration to
his demeanor or to the plausibility of his explanations.
      However,     Liu    failed   to   provide   credible    explanations   for   the
inconsistencies and omissions, some of which went to the heart of his claims
that he had a well-founded fear of future persecution if he returns to China.
The record reflects that the IJ considered Liu’s testimony and gave specific
reasons why it determined that Liu’s statement of the events that occurred was
not credible and did not establish the elements necessary for him to obtain
asylum. Based on the totality of the circumstances, a reasonable factfinder
could have made an adverse credibility finding based on the inconsistencies
between the statements supporting Liu’s applications and Liu’s testimony and
failure to provide a credible explanation for the absence of relevant
documentary evidence. See Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2009).
      A further argument made by Liu is that the use of the video conference
format made it difficult for the IJ to consider his demeanor and body language,
to view the evidence, and to determine whether there were any discrepancies
in the translation by the interpreter.            Congress specifically authorized
conducting removal proceedings by means of a video conference. See 8 U.S.C.
§ 1229a(b)(2)(A)(iii). “During the proceedings, the [alien] must be provided with an
‘opportunity to be heard at a meaningful time and in a meaningful manner.’” Deng
Ming Li v. Holder, 478 F. App’x 884, 887 (5th Cir. 2012) (quoting Mathews v. Eldridge,
424 U.S. 319, 333-34 (1976)). Liu has not demonstrated that he was prejudiced
by the proceedings being conducted by video conference. It is clear from the
hearing transcript and the IJ’s decision that the IJ was familiar with Liu’s
testimony, that she clarified any inconsistencies in the translation, that she
reviewed the exhibits submitted, and that she was aware of the modifications
made by counsel to Liu’s narrative statement during the hearing. Substantial


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                                 No. 13-60353

evidence in the record supports the BIA’s determination that the hearing was
fundamentally fair and did not result in a due process violation.
      Liu further asserts that there were some problems with the translation
of the testimony, but he concurs with the BIA’s determination that any possible
errors had no effect on the IJ’s decision. Thus, he has conceded that he was
not deprived of due process as a result of any faulty translation of the
proceedings.
      Contending that he made a credible showing of past persecution that
gave rise to a well-founded fear of future persecution, Liu asserts that he is
entitled to withholding of removal. Because Liu failed to demonstrate that he
was entitled to asylum, “[i]t necessarily follows that [he] failed to make the
more stringent showing necessary to justify withholding of deportation.”
Adebisi v INS, 952 F.2d 910, 914 (5th Cir. 1992). Substantial evidence in the
record supports the denial of his application for withholding of removal.
      Lastly, Liu argues that the IJ erred in determining that he had not met
his burden of showing that he would be tortured if he is returned to China. Liu
reported only one act of physical abuse during his detention, which resulted in
a fall and a head injury, but his testimony did not reflect that the officer
intentionally inflicted severe pain or suffering upon him. Nor has he shown
that he was subject to any acts of extreme mental cruelty during or after his
detention. Even accepting his testimony concerning his treatment as credible,
it did not reflect that he was subject to torture. 8 C.F.R. § 208.18(a)(1). Nor
has Liu presented evidence that would compel a reasonable factfinder to
conclude that it is more likely than not that he will be subject to torture if he
returns to China. 8 C.F.R. § 208.16(c)(2). The finding that Liu is not entitled
to protection under the Convention Against Torture is supported by
substantial evidence in the record.



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                          No. 13-60353

 The petition for review is DENIED.




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