         12-2460
         Liu v. Holder
                                                                                       BIA
                                                                                 Morace, IJ
                                                                               A087 974 621
                          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 18th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RAYMOND J. LOHIER, JR.,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       YONG DENG LIU,
14                Petitioner,
15
16                       v.                                     12-2460
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Michael Brown, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Principal Deputy
26                                     Assistant Attorney General; Greg
27                                     Mack, Senior Litigation Counsel;
28                                     Micheline Hershey, Attorney, Office
29                                     of Immigration Litigation, United
30                                     States Department of Justice,
31                                     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 DENIED.

 5       Yong Deng Liu, a native and citizen of China, seeks

 6   review of a May 29, 2012, decision of the BIA affirming the

 7   April 6, 2011, decision of Immigration Judge (“IJ”) Philip

 8   L. Morace, which denied his application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).   In re Yong Deng Liu, No. A087 974

11   621 (B.I.A. May 29, 2012), aff’g No. A087 974 621 (Immig.

12   Ct. N.Y. City Apr. 6, 2011).   We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we have reviewed

16   both the BIA’s and IJ’s opinions.     Yun-Zui Guan v. Gonzales,

17   432 F.3d 391, 394 (2d Cir. 2005).    The applicable standards

18   of review are well established.     See 8 U.S.C.

19   §1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

20   Cir. 2009).

21       For applications, like Liu’s, governed by the REAL ID

22   Act, the agency may, “[c]onsidering the totality of the

23   circumstances,” base a credibility finding on an asylum

                                    2
 1   applicant’s “demeanor, candor, or responsiveness,” the

 2   plausibility of his account, and inconsistencies in his

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

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

 5   §§ 1158(b)(1)(B)(iii), 1231(b)(3)©; Xiu Xia Lin v. Mukasey,

 6   534 F.3d 162, 167 (2d Cir. 2008).    We “defer to an IJ’s

 7   credibility determination unless, from the totality of the

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

 9   could make such an adverse credibility ruling.”    Xiu Xia

10   Lin, 534 F.3d at 167.

11          Here, the agency reasonably found Liu not credible

12   based on internal inconsistencies in his testimony and

13   inconsistencies between his testimony and his documents.

14   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at

15   167.    Liu testified inconsistently regarding the dates of

16   his arrests and whether he was with his wife when she was

17   taken for sterilization, stating, contrary to his asylum

18   application, that he was not with his wife in 2000 when the

19   cadres came to take her for sterilization because he was out

20   fishing, but on cross-examination changing his testimony to

21   say that he was with her.    Moreover, Liu testified that he

22   was arrested twice, in 1995 and 2008, changed his testimony


                                    3
 1   to say he was arrested in 2000 and 2008, and then changed it

 2   again to say he could not recall the date of his first

 3   arrest but the second arrest was definitely in 2008.

 4   Furthermore, this inconsistent testimony contradicts Liu’s

 5   asylum application, which mentions no incident in 1995 and

 6   places Liu with his wife in 2000 when she was taken for

 7   forced sterilization.   As these discrepancies go to the

 8   heart of Liu’s claim that he suffered past persecution on

 9   account of his resistance to the family planning policy in

10   China, the agency’s determination that Liu was not credible

11   is supported by substantial evidence.   See Xiu Xia Lin, 534

12   F.3d at 165-66.

13       The adverse credibility determination is further

14   supported by the IJ’s demeanor finding, to which we defer.

15   See Karaj v. Gonzales, 462 F.3d 113, 116 (2d Cir. 2006)

16   (“the IJ’s opportunity to judge demeanor causes us to grant

17   particular deference to credibility findings based on

18   demeanor.” (internal quotations and citation omitted)).     The

19   agency considered and reasonably rejected Liu’s explanations

20   for his inconsistencies, as his lack of literacy and

21   education do not explain his inconsistent statement as to

22   whether he was arrested in 1995 or in 2000 or where he was


                                   4
 1   when his wife was taken for sterilization.    See Majidi v.

 2   Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (A petitioner “must

 3   do more than offer a plausible explanation for his

 4   inconsistent statements to secure relief; he must

 5   demonstrate that a reasonable fact-finder would be compelled

 6   to credit his testimony.” (internal quotations and citation

 7   omitted)).

 8       Given Liu’s inconsistencies, demeanor, and non-

 9   responsive explanations, the totality of the circumstances

10   supports the agency’s adverse credibility determination.

11   See Xiu Xia Lin, 534 F.3d at 167.   Because the only evidence

12   of a threat to Liu’s life or freedom depended upon his

13   credibility, the adverse credibility determination in this

14   case necessarily precludes any relief.   See Paul v.

15   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

16       For the foregoing reasons, the petition for review is

17   DENIED.   The pending motion for a stay of removal in this

18   petition is DISMISSED as moot.

19                               FOR THE COURT:
20                               Catherine O’Hagan Wolfe, Clerk
21




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