     16-3936
     Liu v. Whitaker
                                                                                   BIA
                                                                             Loprest, IJ
                                                                           A206 053 323
                            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 24th day of January, two thousand nineteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            JOSÉ A. CABRANES,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   PINGPING LIU,
14            Petitioner,
15
16                     v.                                        16-3936
17                                                               NAC
18   MATTHEW WHITAKER, ACTING
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                 Theodore N. Cox, Esq., New York, NY.
24
25   FOR RESPONDENT:                 Chad A. Readler, Acting Assistant
26                                      Attorney General; Derek C. Julius,
27                                      Assistant Director; Anthony O.
28                                      Pottinger, Trial Attorney, Office
29                                      of Immigration Litigation, United
30                                      States Department of Justice,
31                                      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 Pingping Liu, a native and citizen of the

6    People’s Republic of China, seeks review of a November 7,

7    2016, decision of the BIA affirming an April 14, 2016,

8    decision      of   an    Immigration      Judge    (“IJ”)      denying   asylum,

9    withholding        of   removal,    and       relief   under   the   Convention

10   Against Torture (“CAT”).             In re Pingping Liu, No. A206 053

11   323 (B.I.A. Nov. 7, 2016), aff’g No. A206 053 323 (Immig. Ct.

12   N.Y. City Apr. 14, 2016).           We assume the parties’ familiarity

13   with the underlying facts and procedural history in this case.

14          Under the circumstances of this case, we have reviewed

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

16   completeness.”          Wangchuck v. Dep’t of Homeland Security, 448

17   F.3d 524, 528 (2d Cir. 2006).                  The applicable standards of

18   review are well established.                  See 8 U.S.C. § 1252(b)(4)(B);

19   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

20          “Considering the totality of the circumstances, and all

21   relevant factors, a trier of fact may base a credibility

22   determination on the demeanor, candor, or responsiveness of


                                               2
1    the applicant or witness, the inherent plausibility of the

2    applicant’s or witness’s account, the consistency between the

3    applicant’s or witness’s written and oral statements . . . ,

4    and the internal consistency of each such statement . . .

5    without regard to whether an inconsistency, inaccuracy, or

6    falsehood    goes   to   the   heart   of   the   applicant’s   claim.”

7    8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d

8    at   163-64.     Substantial     evidence    supports   the     agency’s

9    determination that Liu was not credible as to her claim that

10   family planning officials forcibly terminated her pregnancy.

11        The agency reasonably relied in part on Liu’s demeanor.

12   See 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430

13   F.3d 77, 81 n.1 (2d Cir. 2005) (recognizing that particular

14   deference is given to the trier of fact’s assessment of

15   demeanor).     That finding is supported by the record, which

16   reflects that Liu became hesitant and less responsive on

17   cross-examination thus giving the impression that she sought

18   time to formulate answers rather than testified from memory.

19        The demeanor finding and the overall credibility

20   determination are bolstered by record inconsistencies.              See

21   Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 109 (2d

22   Cir. 2006).    The agency reasonably found that Liu’s


                                        3
1    testimony that she was hospitalized for three days and

2    homebound for one month after suffering a uterine infection

3    as a result of her abortion was inconsistent with

4    statements from her mother and husband who did not mention

5    that Liu was hospitalized or homebound despite describing

6    in detail her other post-abortion issues.         See 8 U.S.C.

7    § 1158(b)(1)(B)(iii); see also Hong Fei Gao v. Sessions,

8    891 F.3d 67, 78 (2d Cir. 2018) (“[T]he probative value of a

9    witness’s . . . silence on particular facts depends on

10   whether those facts are ones the witness would reasonably

11   have been expected to disclose.”).        The agency also

12   reasonably found that Liu changed her description of the

13   nature of her family planning violation from serious to

14   less serious depending on the nature of the questions posed

15   in an effort to bolster her claim.        See 8 U.S.C.

16   § 1158(b)(1)(B)(iii).

17          There is no merit to Liu’s argument that the IJ failed

18   to make her sufficiently aware of the inconsistencies in the

19   record or the potential credibility issues in her case, given

20   that    the   Government    questioned   Liu   about   the   different

21   descriptions of her post-abortion medical treatment and the

22   IJ     repeatedly   noted   the   Government’s    issues     with   her


                                       4
1    credibility.    Further, she has not proffered any explanations

2    for the record inconsistencies.            See Majidi, 430 F.3d at 80

3    (“A petitioner must do more than offer a plausible explanation

4    for his inconsistent statements to secure relief; he must

5    demonstrate that a reasonable fact-finder would be compelled

6    to    credit   his    testimony.”       (internal    quotation     marks

7    omitted)).

8          The agency also reasonably found Liu’s credibility as to

9    the involuntary nature of her abortion undermined by her

10   submission of an abortion certificate and a family planning

11   decision ordering her punished with an abortion and fine.            We

12   have held that the agency does not err in determining that

13   the   submission     of   an   “abortion     certificate”   from   China

14   undermines     credibility     about    an    assertedly    involuntary

15   abortion because the State Department has reported that China

16   issues “abortion certificates” for voluntary abortions, not

17   forced abortions, so that the individuals who have undergone

18   voluntary abortions may obtain leave from work.               See Xiao

19   Xing Ni v. Gonzales, 494 F.3d 260, 263 (2d Cir. 2007); Tu Lin

20   v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006).               Similarly,

21   given that country conditions evidence in the record suggests

22   that the use of force is prohibited under the family planning


                                         5
1    policy and that government officials deny using involuntary

2    abortions as a punishment under the policy, the agency did

3    not err in finding it implausible that the Chinese government

4    would issue a decision ordering Liu punished with an abortion.

5    Her submission of such a document therefore impugned her

6    credibility.      See Wensheng Yan v. Mukasey, 509 F.3d 63, 66-

7    68   (2d   Cir.   2007)   (recognizing   that   adverse   credibility

8    determination may be based on inherent implausibility in

9    applicant’s story if the “finding is tethered to record

10   evidence” or based on common sense).

11        Having questioned Liu’s credibility, the agency

12   reasonably relied further on her failure to rehabilitate

13   her testimony with reliable corroborating evidence.          “An

14   applicant’s failure to corroborate . . . her testimony may

15   bear on credibility, because the absence of corroboration

16   in general makes an applicant unable to rehabilitate

17   testimony that has already been called into question.”

18   Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007).

19   The IJ reasonably declined to afford weight to the unsworn

20   letter from Liu’s mother in China.        See Y.C. v. Holder, 741

21   F.3d 324, 334 (2d Cir. 2013) (deferring to agency’s

22   decision to afford little weight to husband’s letter


                                       6
1    because it was unsworn and from an interested witness).

2    And, as discussed above, Liu’s abortion certificate and

3    punishment decision impugned rather than rehabilitated her

4    claim of an involuntary abortion.   Although the parties

5    stipulated that Liu’s husband would testify in conformity

6    with his affidavit and letter, the agency was not compelled

7    to conclude that his statements alone would be sufficient

8    to rehabilitate Liu’s claim that she was forced to have an

9    abortion given that he was not a first-hand witness and, as

10   discussed above, his letter omitted that Liu was

11   hospitalized and homebound from a post-abortion infection.

12   See Biao Yang, 496 F.3d at 273.

13       Given the demeanor, inconsistency, implausibility, and

14   corroboration findings, the agency’s adverse credibility

15   determination is supported by substantial evidence and is

16   dispositive of asylum, withholding of removal, and CAT

17   relief.*   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

18   Cir. 2006).




     * Contrary to the BIA’s conclusion, Liu did not waive his
     claims for withholding of removal and CAT relief.      The IJ
     denied those claims because Liu failed to testify credibly;
     thus Liu’s challenge to the adverse credibility determination
     on appeal to the BIA necessarily included a challenge to the
     denial of withholding and CAT relief.
                                   7
1        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

8    34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe
11                                 Clerk of Court




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