         11-4557
         Liu v. Holder
                                                                                       BIA
                                                                                VanWyke, IJ
                                                                               A088 121 646
                           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 11th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                JON O. NEWMAN,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _____________________________________
12
13       JUN LIU,
14                       Petitioner,
15
16                       v.                                     11-4557
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Gary J. Yerman, New York, NY
24
25       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
26                                      Attorney General; Luis E. Perez,
27                                      Senior Litigation Counsel; Don G.
28                                      Scroggin, Trial Attorney, Office of
29                                      Immigration Litigation, Civil
30                                      Division, United States Department
31                                      of Justice, Washington, D.C.
 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 DISMISSED in part and DENIED in part.

 5       Petitioner Jun Liu seeks review of an October 11, 2011

 6   order of the BIA affirming the October 14, 2009 decision of

 7   an Immigration Judge (“IJ”) denying his application for

 8   asylum, withholding of removal, and relief under the

 9   Convention Against Torture (“CAT”).     In re Jun Liu, No. A088

10   121 646 (B.I.A. Oct. 11, 2011), aff’g No. A088 121 646

11   (Immig. Ct. N.Y. City Oct. 14, 2009).    We assume the

12   parties’ familiarity with the underlying facts and

13   procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   the decision of the IJ as supplemented by the BIA.       See Yan

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

17   applicable standards of review are well-established.       See

18   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

19   510, 513 (2d Cir. 2009).

20       Insofar as Liu challenges the denial of asylum and CAT

21   relief, we dismiss his petition for review for lack of

22   jurisdiction.   We lack jurisdiction to review the agency’s


                                   2
 1   denial of asylum because Liu’s argument merely disputes the

 2   agency’s fact-finding regarding the timeliness of his asylum

 3   application, see 8 U.S.C. § 1158(a)(3), and we lack

 4   jurisdiction to review the agency’s denial of CAT relief

 5   because Liu did not challenge the denial of that relief

 6   before the BIA.   See 8 U.S.C. § 1252(d)(1); Karaj v.

 7   Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).

 8       Liu’s challenges to the agency’s denial of withholding

 9   of removal are without merit.       As an initial matter, Liu

10   argues that he was eligible for withholding of removal

11   because he demonstrated “other resistance” to China’s family

12   planning policy under Shi Liang Lin v. U.S. Dep’t of

13   Justice, 494 F.3d 296 (2d Cir. 2007) (en banc).       This issue

14   was not raised before the BIA, and will not be considered

15   here.   See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,

16   119-20 (2d Cir. 2007).

17       As to the claim based on prosecution for membership in

18   an underground church, Liu challenges the adverse

19   credibility finding.     For applications governed by the REAL

20   ID Act, such as Liu’s, the agency may base a credibility

21   finding on an applicant’s demeanor, the plausibility of his

22   account, or inconsistencies in his statements, without


                                     3
 1   regard to whether they go “to the heart of the applicant’s

 2   claim.”   8 U.S.C. § 1158(b)(1)(B)(iii). Substantial evidence

 3   supports the agency’s adverse credibility determination.

 4       Liu contends that the IJ and BIA placed too much weight

 5   on his hesitancy in answering questions.    Liu argued that it

 6   can be explained by his lack of experience testifying in

 7   court or through a translator.    However, we defer to the

 8   IJ’s assessment of Liu’s demeanor because the IJ had “the

 9   unique advantage . . . of having heard directly from [him].”

10   See Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir.

11   2005)(citation omitted).

12       The IJ properly relied on the sketchiness of the asylum

13   application; however an IJ may rely on omissions in making a

14   credibility determination.   See Xiu Xia Lin v. Mukasey, 534

15   F.3d 162, 166 n.3 (2d Cir. 2008).    The BIA also relied on

16   the issuance of a Chinese passport to Liu in the United

17   States; however we defer to the factfinder’s inference that

18   the Chinese government would likely not issue a passport to

19   a wanted fugitive.   See Siewe v. Gonzales, 480 F.3d 160,

20   167-68 (2d Cir. 2007).

21       Liu cites background evidence demonstrating the

22   persecution of some Christians in China to corroborate his


                                   4
 1   testimony.   However, nothing suggests that the agency did

 2   not take into account this evidence, see Xiao Ji Chen, 471

 3   F.3d 315, 337 n.17 (2d Cir. 2006)(presuming that the agency

 4   “has taken into account all of the evidence before [it],

 5   unless the record compellingly suggests otherwise”); and the

 6   persecution of    some Christians in China would not rebut the

 7   finding that Liu’s testimony did not credibly establish that

 8   he would be subjected to such persecution.    In sum, the

 9   agency’s adverse credibility determination is supported by

10   substantial evidence and supports its denial of Liu’s

11   application for withholding of removal based on his status

12   as a Christian.

13       For the foregoing reasons, the petition for review is

14   DISMISSED in part and DENIED in part.    As we have completed

15   our review, the pending motion for a stay of removal in this

16   petition is DISMISSED as moot.
17
18                                FOR THE COURT:
19                                Catherine O’Hagan Wolfe, Clerk




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