09-2211-ag
Liu v. Holder
BIA
Simmons, IJ
A095 716 973
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 10 th day of March, two thousand ten.
5
6 PRESENT:
7 ROBERT D. SACK,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 YA-ZHEN LIU,
14 Petitioner,
15
16 v. 09-2211-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL, UNITED STATES
20 DEPARTMENT OF JUSTICE,
21 Respondents.
22 _______________________________________
23
24 FOR PETITIONER: Waisim M. Cheung, New
25 York, New York.
1 FOR RESPONDENTS: Tony West, Assistant Attorney
2 General, Civil Division, Linda S.
3 Wernery, Assistant Director, Kerry
4 A. Monaco, Trial Attorney, Office of
5 Immigration Litigation, U.S.
6 Department of Justice, Washington,
7 D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 decision of the Board of Immigration Appeals (“BIA”), it is
11 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
12 review is DENIED.
13 Ya-Zhen Liu, a native and citizen of China, seeks
14 review of the April 27, 2009 order of the BIA: (1) affirming
15 the March 14, 2007 decision of Immigration Judge (“IJ”)
16 Theresa Holmes-Simmons, denying her application for asylum,
17 withholding of removal, and relief under the Convention
18 Against Torture (“CAT”); and (2) denying her motion to
19 remand. In re Ya-Zhen Liu, No. A095 716 973 (B.I.A. Apr.
20 27, 2009), aff’g No. A095 716 973 (Immig. Ct. N.Y. City Mar.
21 14, 2007). We assume the parties’ familiarity with the
22 underlying facts and procedural history of the case.
23 As an initial matter, Liu does not challenge the
24 agency’s findings that her credibility was undermined
25 because: (1) during her testimony, she was unable to provide
26 the address, location, or name of the church that she had
2
1 allegedly attended in New York for four months; and (2) her
2 testimony that her pastor’s name was Hua Zheng Zhi was
3 inconsistent with a letter that she had submitted, which was
4 allegedly from her pastor, and signed Rev. Andrew Thi.
5 Thus, she has waived any challenge to those findings, see
6 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7
7 (2d Cir. 2005), and they stand as valid bases for the IJ’s
8 adverse credibility determination, see Shunfu Li v. Mukasey,
9 529 F.3d 141, 146-147 (2d Cir. 2008). As the BIA noted,
10 moreover, Liu failed to exhaust on appeal any challenge to
11 the IJ’s finding of a discrepancy between her testimony and
12 a letter from her parents regarding whether they were
13 arrested and detained in China because of their religious
14 beliefs. We decline to consider in the first instance the
15 argument she now raises before this Court. Lin Zhong v.
16 U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
17 We decline to consider Liu's challenges to the agency's
18 other credibility findings. Even if they were in error,
19 remand would be futile as we can confidently predict that
20 the agency would reach the same conclusion in any event on
21 remand. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
22 315, 335 (2d Cir. 2006). Ultimately, because substantial
23 evidence supported the agency’s adverse credibility
3
1 determination, it properly denied Liu’s application for
2 asylum, withholding of removal, and CAT relief because the
3 only evidence that she would be persecuted or tortured
4 depended on her credibility. See Paul v. Gonzales, 444 F.3d
5 148, 156 (2d Cir. 2006).
6 Nor did the BIA abuse its discretion in denying Liu’s
7 motion to remand. See Li Yong Cao v. Dep't of Justice, 421
8 F.3d 149, 151 (2d Cir. 2005). With respect to Liu’s fear of
9 forced sterilization based on her first pregnancy, we find
10 no error in the agency’s conclusion that she failed to
11 demonstrate her prima facie eligibility for relief. To
12 establish asylum eligibility based on a fear of future
13 persecution, an applicant must show that he or she
14 subjectively fears persecution and that this fear is
15 objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d
16 169, 178 (2d Cir. 2004). In denying Liu’s motion, the BIA
17 determined that she failed to demonstrate a “realistic
18 chance” that she could succeed on her family planning claim.
19 As the BIA noted, she never presented evidence demonstrating
20 that she had violated the family planning policy, and thus,
21 failed to demonstrate her prima facie eligibility for
22 relief. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 143 (2d
23 Cir. 2008). We have previously reviewed the agency’s
4
1 consideration of evidence similar to that which Liu
2 submitted and have found no error in its conclusion that it
3 is insufficient to establish an objectively reasonable fear
4 of persecution. See id. at 156-65.
5 For the foregoing reasons, the petition for review is
6 DENIED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
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