09-3904-ag
Liu v. Holder
BIA
Vomacka, IJ
A078 746 840
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 24 th day of August, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 DENNY CHIN,
11 Circuit Judges.
12 _______________________________________
13
14 HONG YAN LIU,
15 Petitioner,
16
17 v. 09-3904-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Feng Li, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Francis W. Fraser, Senior
28 Litigation Counsel, Kate D. Balaban,
29 Attorney, Office of Immigration
30 Litigation, Civil Division, United
31 States Department of Justice,
32 Washington, D.C.
33
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Hong Yan Liu, a native and citizen of China,
6 seeks review of the August 31, 2009, order of the BIA,
7 affirming the December 14, 2007, decision of Immigration
8 Judge (“IJ”) Alan A. Vomacka, denying her application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Hong Yan Liu, No.
11 A078 746 840 (B.I.A. Dec. 14, 2007), aff’g No. A078 746 840
12 (Immig. Ct. N.Y. City Aug. 31, 2009). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we review the
16 decision of the IJ as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See 8
19 U.S.C. § 1252(b)(4)(B); Salimatou Bah v. Mukasey, 529 F.3d
20 99, 110 (2d Cir. 2008).
21 I. Mandatory Gynecological Examinations
22 The BIA found that even assuming Liu had engaged in
23 “other resistance” and that the mandatory gynecological
24 examinations she underwent constituted persecution, there
2
1 was “no nexus between [her] experiences and a desire by
2 Chinese officials to punish her.” In her brief before us,
3 Liu argues that the BIA erred in making its nexus finding.
4 Specifically, Liu argues that if she returns to China she
5 will be forced to undergo mandatory gynecological
6 examinations “partly on account of . . . her resistance to
7 the family planning policy” (i.e., fleeing China to avoid
8 future gynecological examinations). However, Liu points to
9 nothing in the record to support her argument that the
10 gynecological examinations she underwent, or may have to
11 undergo in the future, would be performed on account of her
12 resistance to the policy. In fact, in Liu’s asylum
13 application, she asserted that “[i]n her village, women over
14 18 are required to undertake a gynecological checkup every
15 quarter, regardless [of whether] they are married.”
16 Therefore, contrary to Liu’s argument, the BIA reasonably
17 determined that the gynecological examinations that she
18 underwent were “not designed to persecute [her] for
19 resisting the family planning policy, but rather were part
20 of a standard procedure in China to prevent early or too
21 many pregnancies, or educate women about the policy.” See 8
22 U.S.C. § 1252(b)(4)(B); Matter of M-F-W- & L-G-, 24 I. & N.
23 Dec. 633, 637 (BIA 2008). Therefore, Liu’s argument that
24 she established a nexus between her resistance and the
3
1 gynecological examinations fails. See 8 U.S.C.
2 § 1101(a)(42).
3 II. Well-founded Fear of Future Persecution Based on Birth
4 of U.S. Citizen Child
5 Liu also asserts that she has a well-founded fear of
6 future persecution based on the birth of her U.S. citizen
7 child. In Jian Hui Shao v. Mukasey, this Court found no
8 error in the evidentiary framework the BIA had adopted in
9 analyzing claims, like Liu’s, based on a fear arising from
10 the birth of children. 546 F.3d 138, 143 (2d Cir. 2008).
11 Under that framework, the alien must: “(1) identif[y] the
12 government policy implicated by the births at issue, (2)
13 establish[] that government officials would view the births
14 as a violation of the policy, and (3) demonstrate[] a
15 reasonable possibility that government officials would
16 enforce the policy against petitioner through means
17 constituting persecution.” Id. Liu’s claim fails at each
18 prong because she only has one child who has lived with
19 grandparents in China since infancy. The evidence that she
20 presented concerned the government’s treatment of citizens
21 with more than one child. As the BIA noted, even assuming
22 that Chinese authorities discovered that Liu’s child was
23 residing in China, the evidence that she submitted failed to
24 demonstrate that she would be forcibly sterilized for having
4
1 one child. See id. Moreover, Liu’s assertion in her brief
2 that she “would be subject to monitoring and controlling,”
3 does not suggest that the policy would be enforced through
4 means constituting persecution. Id. Thus, to the extent
5 Liu based her asylum application on an alleged fear based on
6 a single child, the BIA did not err in finding that her fear
7 was not objectively reasonable. Id. at 142-43; 8 C.F.R.
8 § 1208.13(b)(2).
9 Because Liu was unable to demonstrate her eligibility
10 for asylum, the agency reasonably denied her application for
11 withholding of removal and CAT relief, as it was based on
12 the same factual predicate. See Paul v. Gonzales, 444 F.3d
13 148, 156 (2d Cir. 2006).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2), and Second
21 Circuit Local Rule 34.1(b).
22
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
25
5