Xin Liu v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3022
___________
XIN LIU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A077 853 754
Immigration Judge: Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 18, 2009
Before: MCKEE, HARDIMAN and COWEN, Circuit Judges
(Opinion filed : December 17, 2009 )
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OPINION
___________
PER CURIAM
Xin Liu petitions for review of an order of the Board of Immigration Appeals
(“BIA”), which dismissed his appeal from the final removal order of an Immigration
Judge (“IJ”). We will deny the petition for review.

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I.
Liu is a native and citizen of China. He came to the United States in 2005 without
permission. Liu admitted his inadmissability on that basis, but applied for asylum,
withholding of removal and relief under the Convention Against Torture, claiming that he
was persecuted on account of his religion and that his girlfriend was subjected to an
involuntary abortion.
Liu testified as follows. He was baptized in China in 2003. He attended an
underground church at a building that he used in his job as a fisherman. He and others
prayed, studied the Bible, and listened to sermons. On June 27 (probably 2004, although
the testimony is not clear), he and a few others were decorating the room for services
when three policemen rushed in and began to destroy everything. The police arrested
everyone and took them to a detention center. A.R. 74. Liu was detained for three days,
and was questioned about who was in charge of the church. When Liu would not
respond, the police used an electric baton to strike him and also grabbed his head and
struck it against the wall until he was bloody. They interrogated him in that way every
day. On the fourth day, a policeman hit him with a broken glass and made Liu sign a
letter guaranteeing that he would no longer be involved in religious activities. A.R. 74-
75. Liu sought medical treatment and got stitches on his left hand. A.R. 75-76. A few
days after he was released, his girlfriend told him she was pregnant. They tried to register
their marriage, but she was too young. Officials wanted his girlfriend to submit to an

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examination, but the two of them went into hiding in separate places. Liu then left for the
United States. He attends church in Brooklyn or New York. A.R. 76-77.
The IJ denied the requested relief in December 2006, finding that Liu’s claim
regarding his girlfriend’s abortion was not credible. The IJ also noted that under Matter
of S-L-L-, 24 I. & N. Dec. 1 (BIA 2006), Liu would not be eligible for asylum on the
basis of his girlfriend’s abortion unless he was able to show that he had been persecuted
for other resistance to the population control policy. There was no evidence that Liu
resisted or was persecuted on that basis.
The IJ found that Liu’s claim that he was persecuted on the basis of his religious
beliefs did not have any support in the record. The IJ noted that the State Department’s
profile of asylum claims stated that underground churches were often tolerated if they
remain small and unobtrusive. The IJ stated that Liu had not presented any evidence to
show that his church was large, obtrusive, or otherwise notorious. The IJ also noted that
Liu had not presented any witnesses that could attest to his religious beliefs. Although
Liu presented a letter or certificate from China concerning his baptism, it had not been
authenticated. The IJ did not give much weight to a letter Liu presented from an
American church, because it was a fill-in-the-blank letter. The IJ also gave little weight
to a letter from Liu’s girlfriend noting his religious beliefs. The IJ found Liu’s testimony
“overall . . . not to be credible.” The IJ stated that he relied in part on Liu’s demeanor,
including long pauses in his answers and general unease.

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On June 23, 2008, the BIA dismissed Liu’s appeal. The BIA noted that the IJ’s
adverse credibility finding was based in part on Liu’s demeanor, and also that Liu
displayed a lack of knowledge concerning the Christian religion. It also noted that the IJ
did not find Liu’s documents to be credible. The BIA found the IJ’s adverse credibility
determination was sufficiently supported by the record and was not clearly erroneous.
The Board also agreed that Liu was not eligible for asylum on the basis of his girlfriend’s
abortion.
II.
We review the final order of the BIA, but to the extent that the BIA adopts parts of
the IJ’s opinion, we review the IJ’s opinion to determine whether the BIA’s decision to
defer to the IJ was appropriate. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005).
“We will uphold the [adverse credibility] findings . . . to the extent that they are supported
by reasonable, substantial and probative evidence on the record considered as a whole,
and will reverse those findings only if there is evidence so compelling that no reasonable
factfinder could conclude as the [IJ] did.” Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d
Cir. 2003).
This case is governed by the provisions of the Real ID Act of 2005 regarding
review of adverse credibility findings, as Liu’s asylum application was filed after the
effective date of the Act. See Real ID Act of 2005, Pub. L. No. 109-13, Div. B, § 101,
119 Stat. 231 (May 11, 2005). The new provisions, inter alia, purport to eliminate a

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requirement that an adverse credibility finding based on an inaccuracy or inconsistency
involve the heart of the applicant’s claim. See Lin v. Mukasey, 521 F.3d 22, 27-28 (1st
Cir. 2008). We have not addressed the lawfulness of the new provision in a precedential
opinion. We need not consider the effects of the new provisions, however, because the
problems that the IJ noted here go to the heart of Liu’s claims.
The IJ based his adverse credibility finding at least in part on Liu’s inability to
answer questions regarding Christianity, such as which “sect” of Christianity he belonged
to, and the name of the first book of the Bible. The U.S. State Department’s June 2004
Profile of Asylum Claims and Country Conditions for China (“Profile”) cautions that
“some committed Chinese Christians may have difficulty responding” to questions that
“most practicing Christians in the United States would be able to answer” because of a
lack of access to religious training and literature. A.R. 141. However, the IJ also “relied
on [Liu’s] demeanor” in making the adverse credibility finding, noting “long pauses that
attended many of his answers and the general unease with which he appeared to be
testifying here today.” A.R. 32. “We have noted that an immigration judge alone is in a
position to observe an alien’s tone and demeanor and is uniquely qualified to decide
whether an alien's testimony has about it the ring of truth.” Lin v. Att’y Gen., 543 F.3d
114, 128 (3d Cir. 2008) (internal quotations and citations omitted). The IJ also noted that
Liu’s claim that his small underground church was harassed was not entirely consistent
with the Profile’s statement that underground churches were often tolerated if they remain

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Because there is substantial evidence supporting the adverse credibility finding, we1
need not reach Liu’s claim that the IJ required corroboration that was not reasonably
available and that the IJ should have given more weight to the documents he presented.
Liu failed to raise this issue in his brief to the BIA, but the BIA’s consideration of the2
issue is sufficient to provide us with jurisdiction over that issue. Lin v. Att’y Gen., 543
F.3d 114, 124 (3d Cir. 2008). 6
small and unobtrusive. When we consider Liu’s apparent lack of knowledge about
Christianity, coupled with the IJ’s comments regarding Liu’s demeanor during testimony
and the inconsistency between Liu’s claim and the evidence in the Profile, we find that
the record does not compel us to reverse the IJ’s adverse credibility finding. The BIA
properly found that the IJ’s adverse credibility finding was not clearly erroneous, and thus
properly denied Liu asylum.1
We further agree with the BIA that even assuming credibility, Liu was ineligible
for asylum based on his girlfriend’s abortion, as he had not established that he was
persecuted for his own resistence to China’s population control program. Chen v.
Ashcroft, 381 F.3d 221, 229 (3d Cir. 2004).2
Because Liu failed to meet the burden of proof required for asylum, we agree with
the BIA that he necessarily failed to meet the higher burden of proof for statutory
withholding of removal. We further agree that he presented no evidence that he is likely
to be tortured in the future. We will deny the petition for review.

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