07-4080-ag
Ni v. Holder
BIA
Opaciuch, IJ
A 077 122 549
A 073 037 960
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 16 th day of June, two thousand ten.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 PETER W. HALL,
10 Circuit Judges.
11 _______________________________________
12
13 MEI LIAN NI, a.k.a. XIN CHEN and
14 CHANG YONG YANG,
15 Petitioners,
16
17 v. 07-4080-ag
18 NAC
19 ERIC H. HOLDER, JR., 1 U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONERS: Norman Kwai Wing Wong, New York, New
25 York.
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Acting Attorney
General Peter D. Keisler as respondent in this case.
1 FOR RESPONDENT: Gregory G. Katsas, Acting Assistant
2 Attorney General; John C.
3 Cunningham, Senior Litigation
4 Counsel; Luis E. Perez, Senior
5 Litigation Counsel, Office of
6 Immigration Litigation, Washington
7 D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioners Mei Lian Ni and Chang Yong Yang, natives
14 and citizens of the People’s Republic of China, seek review
15 of the September 14, 2007, order of the BIA affirming the
16 October 9, 2002, decision of Immigration Judge (“IJ”) John
17 Opaciuch denying their applications for asylum, withholding
18 of removal, and CAT relief. In re Mei Lian Ni and Chang
19 Yong Yang, Nos. A 077 122 549 and A 073 037 960 (B.I.A.
20 Sept. 14, 2007), aff’g Nos. A 077 122 549 and A 073 037 960
21 (Immig. Ct. N.Y. City Oct. 9, 2002). We assume the parties’
22 familiarity with the underlying facts and procedural history
23 in this case.
24 Under the circumstances of this case, we review both
25 the IJ’s and the BIA’s decisions. See Yan Chen v. Gonzales,
26 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards
2
1 of review are well-established. See 8 U.S.C.
2 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
3 (2d Cir. 2009).
4 I. Ni’s Falun Gong Claim
5 Substantial evidence supports the agency’s adverse
6 credibility determination with respect to Ni’s Falun Gong
7 claim. In support of that determination, the IJ reasonably
8 found that the detention certificate bearing Ni’s father’s
9 name was issued before the authorities had allegedly
10 arrested him. See Siewe v. Gonzales, 480 F.3d 160, 168-69
11 (2d Cir. 2007); see also Wensheng Yan v. Mukasey, 509 F.3d
12 63, 67 (2d Cir. 2007). The IJ also reasonably found
13 implausible Ni’s claim that the authorities renewed her
14 resident ID card despite the fact that she was a wanted
15 fugitive. See Siewe, 480 F.3d at 168-69.
16 Nor did the IJ err in relying on the record of Ni’s
17 airport interview to support his adverse credibility
18 determination. See Ramsameachire v. Ashcroft, 357 F.3d 169,
19 179 (2d Cir. 2004). As the IJ found, Ni’s statements at
20 that interview were inconsistent with her testimony and
21 amended asylum application. Indeed, Ni did not mention that
22 she owned the bookstore or that the authorities were seeking
3
1 to arrest her in connection with her sale of illegal Falun
2 Gong books. Although Ni offered explanations for these
3 discrepancies, a reasonable fact-finder would not have been
4 compelled to credit them. See Majidi v. Gonzales, 430 F.3d
5 77, 80-81 (2d Cir. 2005).
6 Ultimately, substantial evidence supported the agency’s
7 adverse credibility determination. 8 U.S.C.
8 § 1252(b)(4)(B). Therefore, with respect to her Falun Gong
9 claim, because the only evidence that Ni was likely to be
10 persecuted or tortured depended upon her credibility, the
11 adverse credibility determination in this case necessarily
12 precludes success on her claims for withholding of removal
13 and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
14 Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
15 520, 523 (2d Cir. 2005).
16 II. Family Planning Claim
17 Petitioners argue that the agency erred in finding that
18 they failed to establish their eligibility for relief based
19 on the birth of their second U.S. citizen child. However,
20 we have previously reviewed the BIA’s consideration of
21 evidence similar to that which petitioners submitted and
22 have found no error in its conclusion that such evidence is
23 insufficient to establish a reasonable possibility of
4
1 persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
2 169-72 (2d Cir. 2008); see also Wei Guang Wang v. BIA, 437
3 F.3d 270, 275 (2d Cir. 2006).
4 III. Illegal Departure
5 Finally, Petitioners argue generally that the IJ erred
6 in finding that they did not establish that they would be
7 tortured if returned to China due to their illegal
8 departure. However, evidence that some individuals who left
9 China illegally are imprisoned, and that human rights
10 violations including torture occur in Chinese prisons, is
11 insufficient to establish a clear probability of torture for
12 a particular illegal emigrant. See Mu Xiang Lin v. U.S.
13 Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005); Mu-
14 Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir. 2003).
15 Petitioners present no particularized evidence that they are
16 uniquely susceptible to torture compared to other illegal
17 emigrants. Mu-Xing Wang, 320 F.3d at 143-44.
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
5
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4
5
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9
10
6