Yong Xiu Lian v. Holder

09-2876-ag Lian v. Holder BIA Holmes-Simmons, IJ A094 219 205 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 22 nd day of July, two thousand ten. 5 6 PRESENT: 7 ROBERT D. SACK, 8 REENA RAGGI, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _______________________________________ 12 13 YONG XIU LIAN, 14 Petitioner, 15 16 v. 09-2876-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, BOARD OF IMMIGRATION 20 APPEALS, 21 Respondents. 22 ______________________________________ 23 24 FOR PETITIONER: Farah Loftus, Century City, 25 California. 26 27 FOR RESPONDENTS: Tony West, Assistant Attorney 28 General, Civil Division; Mary Jane 29 Candaux, Assistant Director, Office 30 of Immigration Litigation; Laura 31 M.L. Maroldy, Attorney, Office of 32 Immigration Litigation, United 1 States Department of Justice, 2 Washington, D.C. 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Yong Xiu Lian, a native and citizen of the 9 People’s Republic of China, seeks review of a June 11, 2009, 10 order of the BIA affirming the October 2, 2007, decision of 11 Immigration Judge (“IJ”) Theresa Holmes-Simmons denying 12 Lian’s application for asylum, withholding of removal, and 13 relief under the Convention Against Torture (“CAT”). In re 14 Yong Xiu Lian, No. A094 219 205 (B.I.A. June 11, 2009), 15 aff’g No. A094 219 205 (Immig. Ct. N.Y. City Oct. 2, 2007). 16 We assume the parties’ familiarity with the underlying facts 17 and procedural history in this case. 18 Under the circumstances of this case, we review the 19 IJ’s decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 20 (2d Cir. 2005). The applicable standards of review are 21 well-established. See 8 U.S.C. § 1252(b)(4)(B); Jian Hui 22 Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008); 23 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). 24 As a preliminary matter, because the IJ’s finding that 2 1 Lian failed to meet her burden of proof for asylum is 2 supported by substantial evidence, we need not reach the 3 IJ’s alternative finding that Lian was ineligible for asylum 4 because her application was untimely. See Abimbola v. 5 Ashcroft, 378 F.3d 173, 180 (2d Cir. 2004)(exercising 6 "hypothetical jurisdiction" and deciding merits where case 7 presented question of statutory, no constitutional, 8 jurisdiction). 9 Lian argues that the government “has not rebutted the 10 presumption [of a well-founded fear] by showing by a 11 preponderance of the evidence that conditions in China had 12 changed.” However, in the absence of a finding of past 13 persecution, the burden does not shift to the government to 14 demonstrate a fundamental change in country conditions. See 15 8 C.F.R. 1208.16(b)(1)(i)(A). Here, because Lian 16 acknowledges that she did not establish past persecution, 17 her argument is without merit. 18 Moreover, substantial evidence supports the IJ’s 19 conclusion that Lian failed to demonstrate a well-founded 20 fear of future persecution. With respect to Lian’s fear of 21 persecution based on the birth of her two U.S. citizen 22 children, as the IJ found, she presented no evidence that 3 1 Chinese authorities would seek to forcibily sterilize her on 2 that basis. See Jian Hui Shao, 546 F.3d at 163. 3 The IJ also reasonably found that Lian failed to 4 establish a well-founded fear of persecution based on her 5 practice of Falun Gong, because the Chinese government was 6 not likely to become aware of Lian’s practice when she only 7 practices inside her home. We are not persuaded by Lian’s 8 argument that this analysis was erroneous. See Hongsheng 9 Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008); Manzur v. 10 U.S. Dep’t of Homeland Sec., 494 F.3d 281, 290 (2d Cir. 11 2007). 12 Lian argues generally that because her testimony was 13 credible, she necessarily established a well-founded fear of 14 future persecution. However, although credible testimony 15 alone may suffice to sustain an applicant’s burden, it does 16 not always. See Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 17 2000). Here, the IJ was under no obligation to grant asylum 18 based solely on Lian’s testimony. 19 As Lian was unable to meet her burden for asylum, she 20 necessarily failed to meet the higher burden required for 21 withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 22 156 (2d Cir. 2006). Similarly, because Lian failed to 4 1 present any specific evidence that someone in her particular 2 alleged circumstances faces a likelihood of torture in 3 China, the IJ reasonably denied her request for CAT relief. 4 Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 158, 5 159-60 (2d Cir. 2005). 6 For the foregoing reasons, the petition for review is 7 DENIED. As we have completed our review, any stay of 8 removal that the Court previously granted in this petition 9 is VACATED, and any pending motion for a stay of removal in 10 this petition is DISMISSED as moot. Any pending request for 11 oral argument in this petition is DENIED in accordance with 12 Federal Rule of Appellate Procedure 34(a)(2), and Second 13 Circuit Local Rule 34.1(b). 14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16 17 5