07-3825-ag
Xue v. Holder
BIA
Hom, IJ
A095 100 967
A095 100 968
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 4 th day of March, two thousand ten.
PRESENT:
ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
RICHARD C. WESLEY,
Circuit Judges.
_______________________________________
LI-FANG XUE, a.k.a. YUEN-HO LAM, and
JIA ZI LIN, a.k.a. LAM YUE HWA,
Petitioners,
v. 07-3825-ag
NAC
ERIC H. HOLDER JR., ATTORNEY GENERAL, 1
Respondent.
_______________________________________
FOR PETITIONERS: H. Raymond Fasano, New York, New
York.
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric. H. Holder Jr. is
automatically substituted for former Attorney General
Alberto Gonzales as the respondent in this case.
FOR RESPONDENT: Gregory G. Katsas, Acting Assistant
Attorney General, James A. Hunolt,
Senior Litigation Counsel, Nicole N.
Murley, Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Petitioners Li-Fang Xue and Jia Zi Lin, natives and
citizens of the People’s Republic of China, seek review of
an August 8, 2007 order of the BIA affirming the August 10,
2005 decision of Immigration Judge (“IJ”) Sandy K. Hom,
denying their applications for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Xue et al, Nos. A095 100 967, A095 100 968
(B.I.A. Aug. 8, 2007), aff’g Nos. A095 100 967, A095 100 968
(Immig. Ct. N.Y. City Aug. 10, 2005). We assume the
parties’ familiarity with the underlying facts and
procedural history of the case.
As an initial matter, because Xue did not challenge the
IJ’s denial of her withholding of removal and CAT claims
before either the BIA or this Court, we deem any such
argument abandoned. See Gui Yin Liu v. INS, 508 F.3d 716,
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723 n.6 (2d Cir. 2007). Moreover, we are not without
jurisdiction to review Petitioners’ claim because they were
placed in “asylum-only,” as opposed to removal, proceedings.
See Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir. 2006).
When the BIA adopts the decision of the IJ and
supplements the IJ’s decision, we review the decision of the
IJ as supplemented by the BIA. See Yan Chen v. Gonzales,
417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s
factual findings under the substantial evidence standard.
8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519
F.3d 90, 95 (2d Cir. 2008). We review de novo questions of
law and the application of law to undisputed fact. See
Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
Xue’s application for asylum was based on three
independent claims: (1) that she suffered past persecution
because of her IUD insertion; (2) that she suffered past
persecution because she had to pay a fine for not timely
registering her marriage in China; and (3) that she has a
well-founded fear of future persecution because she gave
birth to a second child in the United States.
We conclude that the agency did not err in finding that
Xue failed to testify credibly as to her first two claims.
The IJ reasonably found that Xue was not credible because
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she admitted that she lied under oath during a prior
immigration proceeding.
See Rui Ying Lin v. Gonzales, 445 F.3d 127, 133 (2d Cir.
2006) (discussing the maxim of falsus in uno, falsus in
omnibus (false in one thing, false in everything)). It was
also reasonable for the IJ to reject Xue’s explanation that
a snakehead coached her to make that claim in order for her
to be released from detention. See Majidi v. Gonzales, 430
F.3d 77, 80-81 (2d Cir. 2005) (emphasizing that the agency
need not credit an applicant’s explanations for inconsistent
testimony unless those explanations would compel a
reasonable fact-finder to do so).
While the IJ likely erred in relying on inconsistencies
between Xue’s testimony and her husband’s earlier asylum
application, see Bao Zhu Zhu v. Gonzales, 460 F.3d 426 (2d
Cir. 2006), remand would be futile as it can be confidently
predicted that the agency would reach the same decision,
absent any error, given Xue’s admission that she previously
lied to an IJ. See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 335 (2d Cir. 2006).
With regard to Xue’s third claim, the IJ did not err in
finding that she failed to demonstrate that she had a well-
founded fear of persecution because she gave birth to a
4
second child in the United States. While Xue is correct
that the BIA did not conduct an independent analysis of her
claim, the IJ did conduct such an analysis and reasonably
concluded that she failed to meet her burden. As the IJ
found, Xue’s claim relied primarily on the Aird Affidavit, a
document we have held is insufficient to establish the
existence of a policy of forced sterilization in China. See
Wei Guang Wang v. BIA, 437 F.3d 270, 274-76 (2d Cir. 2006).
Accordingly, without any “reliable, specific, objective”
evidence that Xue would be sterilized because of the birth
of her second child in the United States, see Shao v.
Mukasey, 546 F.3d 138, 159 (2d Cir. 2008) (citing
Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.
2004)), substantial evidence supports the agency’s
conclusion that Xue failed to demonstrate that she has a
well-founded fear of persecution if returned to China, see
8 U.S.C. § 1252(b)(4)(B); see also Corovic, 519 F.3d at 95.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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