An Jun Liu v. Attorney General of the United States

IMG-097 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1542
___________
AN JUN LIU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A055-435-302)
Immigration Judge: Honorable Frederic G. Leeds
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 10, 2010
Before: RENDELL, FISHER and GARTH, Circuit Judges
(Filed: February 16, 2010)
___________
OPINION OF THE COURT
___________
PER CURIAM.
An Jun Liu, a native and citizen of the People’s Republic of China, seeks review of
a final order of removal entered by the Board of Immigration Appeals (“BIA”). We will
deny the petition for review.

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Liu does not argue her asylum or CAT claims in her brief to this Court. Her sole1
challenge on appeal is to the denial of withholding of removal based on the adverse
credibility determination. Accordingly, we limit our analysis to that issue.
2
Because the parties are familiar with the background, we merely summarize for
purposes of this non-precedential decision. Liu arrived in the United States in 2002 and
was admitted as a conditional resident on the basis of her marriage to a United States
citizen. In 2006, the Department of Homeland Security filed a Notice to Appear and
terminated Liu’s conditional status after her “husband” admitted that the marriage was a
fraud. Liu conceded before the Immigration Judge (“IJ”) that she was removable due to
the fraudulent marriage. In her 2007 application for asylum, she claimed past persecution
in China based on a forced sterilization procedure. Liu also sought withholding of
removal and relief under the Convention Against Torture (“CAT”).
The IJ denied the asylum application as time barred, determined that Liu lacked
credibility, and denied withholding of removal and CAT relief. The BIA agreed that the
asylum application was untimely filed, and it affirmed the denial of withholding of
removal because it found no error in the adverse credibility determination. The BIA also
denied CAT relief. Liu timely filed a petition for review in this Court.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). We review agency factual1
findings, including an adverse credibility determination, under the deferential substantial
evidence standard, which asks only that the findings be supported by “reasonable,
substantial, and probative evidence on the record considered as a whole.” INS v.

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3
Elias-Zacarias, 502 U.S. 478, 481 (1992) (citing 8 U.S.C. § 1105a(a)(4)); see Butt v.
Gonzales, 429 F.3d 430, 433 (3d Cir. 2005). Such findings are deemed “‘conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.’”
Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004) (quoting 8 U.S.C. § 1252(b)(4)(B)).
Under the provisions of the REAL ID Act, which the BIA correctly noted are
applicable here, the IJ, after “[c]onsidering the totality of the circumstances, and all
relevant factors,” may base an adverse credibility determination
on the demeanor, candor, or responsiveness of the applicant
or witness, the inherent plausibility of the applicant’s or
witness’s account, the consistency between the applicant’s or
witness’s written and oral statements (whenever made and
whether or not under oath, and considering the circumstances
under which the statements were made), the internal
consistency of each such statement, the consistency of such
statements with other evidence of record (including the
reports of the Department of State on country conditions), and
any inaccuracies or falsehoods in such statements, without
regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim, or any other
relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii).
To qualify for withholding of removal, Liu had to show that she “more likely than
not” will face persecution if returned to China. See INS v. Cardoza-Fonseca, 480 U.S.
421, 430 (1987). Liu, as noted, sought withholding based on a claim that she was
persecuted in the past due to forced sterilization. A successful showing of past
persecution would have entitled Liu to a rebuttable presumption that she faces future

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For example, the IJ found inconsistency regarding a fine that was purportedly2
levied against Liu for violating family planning policy. Liu claimed that she was unable
to pay the entire fine, but a document that she submitted purported to show that the
balance was paid in full in 1994. (J.A. 271.) Yet Liu also submitted another, conflicting
document reflecting an outstanding balance as of 2001 for the birth of a second child.
(J.A. 274.) As the government correctly points out, the conflicting information contained
in these two documents was never explained. Respondent’s Br. at 18.
4
persecution. See 8 C.F.R. § 208.16(b)(1)(i). The BIA, however, denied withholding on
the basis of the IJ’s adverse credibility determination.
Upon a review of the record, we find substantial evidence to support the adverse
credibility determination, and, therefore, the denial of withholding of removal. The BIA
offered specific and cogent reasons for rejecting Liu’s credibility, including the
following: (1) despite Liu’s claim that she was forcibly sterilized in China, the medical
form for her visa in 2001 provided that she had not been pregnant, made no mention of
sterilization, and had no marks on the abdomen or genitalia; (2) Liu failed to mention in
either her asylum application or on direct examination that she frequently was sick as a
result of her alleged sterilization, but only attested to that fact in response to the IJ’s
questioning; (3) Liu admitted that she previously gave false testimony about her marriage
and admitted that her husband’s application was untrue, despite the fact that she had
contended at the beginning of the hearing that the filings were true and accurate; and
(4) many documents that Liu submitted were deemed suspect because of conflicting
information, and the IJ found that there were inconsistencies between Liu’s testimony and
her documents that she could not adequately explain.2

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While this Court has yet to address whether the REAL ID Act’s credibility3
standard, 8 U.S.C. § 1158(b)(1)(B)(iii), is consistent with due process – an issue not
raised on this appeal – we are satisfied that Liu’s challenge to the BIA’s adverse
credibility finding would fail under the pre-REAL ID Act standard, as well.
5
Given the inconsistencies in the evidence, Liu’s willing participation in a
fraudulent marriage to gain entry to the United States, and her otherwise unreliable
testimony before the IJ, we cannot conclude that any reasonable adjudicator would be
compelled to find Liu credible.3
Liu attempts in her brief to cast doubt upon several of the grounds cited to support
the adverse credibility determination. She suggests, for example, that the medical form
for her visa in 2001 “is not a particularly trustworthy document” because its questions are
“ambiguous” and thus Liu’s answers to those questions are open to more than one
interpretation. Appellant’s Br. at 12. That there can be other plausible interpretations of
the evidence, however, is not enough to overturn the adverse credibility finding. See,
e.g., Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985) (“Where there
are two permissible views of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.”). We fully have considered Liu’s arguments regarding the
evidence but conclude that her arguments plainly do not compel a conclusion contrary to
that reached by the BIA.
For the foregoing reasons, we will deny the petition for review.

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