         13-2134
         Liu v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A200 929 122
                          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 23rd day of June, two thousand fourteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       XIAOCHONG LIU,
14                Petitioner,
15
16                       v.                                     13-2134
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Xiaochong Liu, Pro Se, Las Vegas,
24                                     Nevada.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Ernesto H. Molina, Jr.,
28                                     Assistant Director; Andrew N.
29                                     O’Malley, Trial Attorney, Office of
30                                     Immigration Litigation, United
 1                          States Department of Justice,
 2                          Washington, D.C.
 3
 4       UPON DUE CONSIDERATION of this petition for review of a

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

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

 7   is DENIED.

 8       Xiaochong Liu, a native and citizen of the People’s

 9   Republic of China, seeks review of an April 30, 2013,

10   decision of the BIA affirming an Immigration Judge’s (“IJ”)

11   March 1, 2011, decision, denying his application for asylum,

12   withholding of removal, and relief under the Convention

13   Against Torture (“CAT”).   In re Xiaochong Liu, No. A200 929

14   122 (B.I.A. Apr. 30, 2013), aff’g No. A200 929 122 (Immig.

15   Ct. N.Y. City Mar. 1, 2011).    We assume the parties’

16   familiarity with the underlying facts and procedural history

17   in this case.

18       Under the circumstances of this case, we have reviewed

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

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

21   applicable standards of review are well established.       See 8

22   U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

23   F.3d 510, 513 (2d Cir. 2009).       Because Liu failed to exhaust

24   his challenge to the IJ’s denial of CAT relief, we address


                                     2
 1   only asylum and withholding of removal.     See Karaj v.

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

 3   petitioners must first challenge the denial of categories of

 4   relief before the BIA as a matter of statutory exhaustion).

 5       For applications such as Liu’s, governed by the REAL ID

 6   Act of 2005, the agency may, “considering the totality of

 7   the circumstances,” base a credibility finding on the

 8   applicant’s “demeanor, candor, or responsiveness,” the

 9   plausibility of his account, and inconsistencies in his

10   statements, without regard to whether they go “to the heart

11   of the applicant’s claim.”   See 8 U.S.C.

12   § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

13   167 (2d Cir. 2008) (per curiam).   We “defer to an IJ’s

14   credibility determination unless, from the totality of the

15   circumstances, it is plain that no reasonable fact-finder

16   could make” such a ruling.   Xiu Xia Lin, 534 F.3d at 167.

17       Here, the IJ reasonably based the adverse credibility

18   determination on Liu’s inconsistent testimony and

19   inconsistencies between his testimony and his documentary

20   evidence.   As the agency found, Liu gave confusing and

21   inconsistent testimony regarding why he petitioned for a new

22   Chinese passport after arriving in the United States.


                                   3
 1   Initially, Liu stated that he needed to replace his expiring

 2   passport, but later testified that needed a new passport as

 3   evidence of his admission to the United States and his

 4   nationality.   The IJ reasonably rejected Liu’s explanation

 5   that the new passport was necessary to apply for asylum,

 6   given that Liu’s original passport, which he submitted,

 7   provided sufficient evidence of his entry and nationality.

 8   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

 9       In addition, Liu’s testimony that he reported his

10   original passport lost (to obtain a replacement)

11   contradicted his original passport, which was stamped

12   “cancel” and had its corner cut.   This suggested that the

13   Chinese government received and invalidated it before

14   issuing a new passport.   Because these inconsistencies

15   related to the reasonableness of Liu’s fear of persecution

16   by the Chinese government, the totality of the circumstances

17   support the agency’s adverse credibility determination.      See

18   8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin,

19   534 F.3d at 167.

20       Although Liu submitted corroborating letters from his

21   relatives and pastors, a medical document and fine receipt

22   from the date of his release from custody, and a notice from


                                   4
 1   the Chinese government, the IJ reasonably found that

 2   evidence insufficient to establish Liu’s eligibility for

 3   relief absent credible testimony, because the authors were

 4   interested parties and unavailable for cross-examination and

 5   the medical document and notice were unsigned and unsworn.

 6   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342

 7   (2d Cir. 2006) (the weight accorded to documentary evidence

 8   lies largely within agency’s discretion); see also Matter of

 9   H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)

10   (giving diminished evidentiary weight to letters from

11   “relatives and friends,” because they were from interested

12   witnesses not subject to cross-examination), rev’d on other

13   grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir.

14   2012).    The only evidence of a threat to Liu’s life or

15   freedom depended upon his credibility, so the adverse

16   credibility determination in this case necessarily precludes

17   success on his claims for asylum and withholding of removal.

18   See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

19       For the foregoing reasons, the petition for review is

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

21   removal that the Court previously granted in this petition

22   is VACATED, and any pending motion for a stay of removal in

23   this petition is DISMISSED as moot.    Any pending request for
                                    5
1   oral argument in this petition is DENIED in accordance with

2   Federal Rule of Appellate Procedure 34(a)(2), and Second

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7




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