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LIU v. GARLAND (2021)

United States Court of Appeals, Second Circuit.2021-06-21No. 18-2005

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Opinion

SUMMARY ORDER

Meiling Liu, a native and citizen of the Peoples Republic of China, seeks review of a June 11, 2018, decision of the BIA affirming a July 26, 2017 decision of an Immigration Judge (“IJ”) denying asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). In re Meiling Liu, No. A 205 821 621 (B.I.A. Jun. 11, 2018), affg No. X XXX XX1 621 (Immig. Ct. N.Y. City Jul. 26, 2017). We assume the parties’ familiarity with the underlying facts and procedural history.

Under the circumstances of this case, we have reviewed both the IJs and BIAs decisions “for the sake of completeness.” Wangchuck v. Dept of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). Because Liu contests only the denial of her claim of past persecution under the family planning policy, we address only the adverse credibility determination underlying the agencys denial of relief on that basis.

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See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005). Although Liu argues that the agency erred in extending the adverse credibility determination to her fear of future persecution as a Christian, she has not challenged the agencys alternative dispositive determination that she failed to establish an objectively reasonable fear of future persecution on that basis.

We review the adverse credibility determination for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018). “Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant ․, the consistency between the applicants or witnesss written and oral statements ․, the internal consistency of each such statement, the consistency of such statements with other evidence of record ․ without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicants claim, or any other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). “We defer ․ to an IJs credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008); accord Hong Fei Gao, 891 F.3d at 76. Substantial evidence supports the adverse credibility determination here.

The adverse credibility determination is supported by the IJs demeanor finding. We defer to the IJs demeanor finding because the IJ was “in the best position to evaluate whether apparent problems in the witnesss testimony suggest a lack of credibility or, rather, can be attributed to an innocent cause such as difficulty understanding the question.” Jin Chen v. U.S. Dept of Justice, 426 F.3d 104, 113 (2d Cir. 2005). Here, the hearing transcript reflects a number of times during which Liu was silent in response to straightforward questions on cross-examination.

The adverse credibility determination is also supported by the IJs finding that Lius testimony was vague. See Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir. 2003) (holding that “spare” testimony may be indication of fabrication), overruled in part on other grounds by Shi Liang Lin v. U.S. Dept. of Justice, 494 F.3d 296, 305 (2d Cir. 2007) (en banc). As the IJ found, Lius direct testimony and written statements were brief. When pressed to expand on some points, such as how she entered the United States, she could not provide details. When Liu noted on cross-examination that she had her intrauterine device (“IUD”) removed prior to leaving China, in violation of the family planning policy, she provided no response when asked why she did not include that information in her prior statements. Given the lack of explanation and the fact that the IUD requirement was material to her claim of past persecution, the IJ did not err in relying on the omission. See Hong Fei Gao, 891 F.3d at 78, 82 (holding that “the probative value of a witnesss prior silence on particular facts depends on whether those facts are ones the witness would reasonably have been expected to disclose”).

Having questioned Lius credibility, the agency reasonably relied on her failure to corroborate her testimony with reliable evidence. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“An applicants failure to corroborate his or her testimony may bear on credibility, because the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question.”). The agency did not err in declining to credit letters from Lius mother, family, and friends in China. See Y.C. v. Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (holding that the weight of the evidence is a matter of agency discretion and deferring to agencys decision to afford little weight to spouses letter); see also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (letters from noncitizens friends and family were insufficient to provide substantial support for noncitizens claims because they were from interested witnesses not subject to cross-examination), overruled on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133–38 (2d Cir. 2012). Liu submitted no medical records to corroborate her alleged pregnancy, forced abortion and IUD insertion, ensuing required medical check-ups to monitor the IUD, or her visit to the private clinic to get her IUD removed, despite producing a record of a medical visit for an unrelated illness that she submitted in an attempt to establish her date of entry into the United States.

In sum, substantial evidence supported the IJs adverse credibility determination.

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See Xiu Xia Lin, 534 F.3d at 165–66. The adverse credibility determination is dispositive of asylum, withholding of removal, and CAT relief because all three forms of relief rely on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.

FOOTNOTES

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.   Because we may assume hypothetical jurisdiction where, as here, an asylum claim fails on the merits, we do not further address the agencys denial of asylum as untimely. See INS v. Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”); Ivanishvili v. U.S. Dept of Justice, 433 F.3d 332, 338 n.2 (2d Cir. 2006) (assuming jurisdiction where jurisdictional bar is statutory, not constitutional, and claim is “plainly without merit”).

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.   We therefore do not reach the agencys additional plausibility finding relating to Lius education and knowledge of the family planning policy or the possible inconsistency between her and her uncles versions of his visit to China. See Gurung v. Barr, 929 F.3d 56, 62 (2d Cir. 2019) (noting that remand to the agency would be futile “whenever the reviewing panel is confident that the agency would reach the same result upon a reconsideration cleansed of errors” (internal quotation marks omitted)).