Xiang Liu v. Attorney General of the United States

IMG-087 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4811
___________
XIANG 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. A99-677-646)
Immigration Judge: Honorable Margaret R. Reichenberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 11, 2010
Before: MCKEE, HARDIMAN AND COWEN, Circuit Judges
(Opinion filed February 22, 2010)
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OPINION
___________
PER CURIAM
Xiang Liu, a Chinese native and citizen, petitions for review of a final order of the
Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (IJ) denial of
his application for asylum, withholding of removal and relief under the Convention

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Against Torture (“CAT”). Before the IJ, Liu testified that he had suffered past
persecution and feared future persecution by the Chinese government based on his
practice of Falun Gong. Specifically, Liu alleged that in August 1998, at the urging of his
father, he began to occasionally practice Falun Gong. Liu continued to practice even after
the government banned Falun Gong in 1999. In July 2004, according to Liu, police
officers burst into his home and arrested him, his father, and four other practitioners. Liu
testified that he was detained at the police precinct for three weeks; while there, police
officers beat him with their fists and used a stun baton on his back. Police released him
after he signed a statement agreeing not to practice Falun Gong. Liu left China one year
later, and he testified that he continues to practice Falun Gong in the United States.
The IJ, in an order denying Liu’s various petitions for relief, found material
inconsistencies in Liu’s testimony and determined that he was incredible. First, the IJ
questioned Liu’s failure to mention the stun baton in his written asylum statement and
also doubted his claim that the baton did no damage to his skin. The IJ also noted a
discrepancy between Liu’s written statement that he and his father practiced Falun Gong
secretly after his arrest while he testified that from 2002 to 2004 he practiced in public by
a riverside. The IJ also rejected Liu’s withholding of removal and CAT claim. The BIA,
agreeing with the IJ’s credibility determination, affirmed. Liu has filed a petition for
review in this Court challenging the IJ’s finding that his testimony was not credible.

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Liu has not made any arguments regarding the BIA’s CAT determination. See Lie v.1
Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir. 2005) (failure to argue an issue in an opening
brief constitutes a waiver of the argument on appeal).
Because Liu filed his asylum application after the enactment of the REAL ID Act,2
the IJ’s credibility determination was made without regard to whether an inconsistency,
inaccuracy, or falsehood went to the heart of Liu’s claim. See Chukwu v. Att’y Gen., 484
F.3d 185, 189 (3d Cir. 2007). We have not considered whether the REAL ID Act’s
3
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We uphold the BIA’s
determinations if they are supported by reasonable, substantial and probative evidence on
the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.
2008). When the BIA substantially relies on the IJ’s adverse credibility determination,
we have jurisdiction to review both opinions. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.
2004).
To be granted asylum, Liu needed to show that he is “unable or unwilling to return
to [China] . . . because of persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1101(a)(42)(A); see also 8 U.S.C. § 1158(b)(1)(A). To be eligible for
withholding of removal, Liu was required to demonstrate that “there is a greater-than-
fifty-percent chance of persecution” in China based on one of these protected grounds.
Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998); see also 8 U.S.C.
§ 1231(b)(3)(C).1
The BIA’s finding that Liu’s testimony was not credible is supported by substantial
evidence. See Sukwanputra v. Gonzales, 434 F.3d 627, 636 (3d Cir. 2006) (an adverse2

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provision is consistent with principles of due process. We need not do so here, however,
because the IJ’s adverse credibility determination rested on inconsistencies that were
central to Liu’s claim of persecution. See Wang v. Holder, 569 F.3d 531, 538 (5th Cir.
2009) (canvassing the provision).
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credibility determination is appropriately based on inconsistent statements and
contradictory evidence). Liu was repeatedly inconsistent regarding the dates of his Falun
Gong activity. Liu stated that he practiced in 1999, 2000, 2002, 2003, and 2004. (A.R. at
137) At other points in his testimony, he stated that he did not practice in 2000. (Id.) His
asylum statement made no mention of any practice of Falun Gong between 1999 and
2002, and states that he was afraid to practice Falun Gong after his father’s arrest in 1999.
(A.R. at 325). Moreover, Liu’s asylum statement seemed to indicate that he practiced
Falun Gong secretly after 2002; however, he testified that he practiced by the riverside
from 2002 until his arrest in 2004. The internal inconsistencies between Liu’s testimony
and the inconsistency with his asylum statement are sufficient to support the IJ’s adverse
credibility determination. Lin v. Att’y Gen., 543 F.3d 114, 127 (3d Cir. 2008). Further,
we agree with the IJ that Liu’s participation in a pro-Falun Gong march does not establish
a well-founded fear of future persecution. See Shardar v. Att’y Gen., 503 F.3d 308, 313
(3d Cir. 2007) (an applicant must show that he has a subjective fear of persecution that is
supported by objective evidence that persecution is a reasonable possibility). In sum,
because the IJ found Liu incredible, he could not demonstrate past persecution or a well-
founded fear of persecution in China on account of a protected ground. See 8 U.S.C. §

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1101(a)(42); Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003).
Because Liu did not satisfy the standard for asylum, he cannot satisfy the higher
burden of proof for withholding of removal. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir.
1991).
For the foregoing reasons, we deny Liu’s petition for review.

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