Filed: Feb. 08, 2010
Latest Update: Mar. 02, 2020
Summary: 08-6274-ag Li v. Holder BIA Weisel, IJ A093-397-439 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 NOT
Summary: 08-6274-ag Li v. Holder BIA Weisel, IJ A093-397-439 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 NOTA..
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08-6274-ag
Li v. Holder
BIA
Weisel, IJ
A093-397-439
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 8 th day of February, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11
12 _______________________________________
13
14 HAN LI,
15 Petitioner,
16
17 v. 08-6274-ag
18 NAC
19
20 ERIC H. HOLDER JR., UNITED STATES
21 ATTORNEY GENERAL, 1
22 Respondent.
23 ______________________________________
24
25
26
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder Jr. is
automatically substituted for former Attorney Michael B.
Mukasey as the respondent in this case.
1 FOR PETITIONER: Fuhao Yang, New York, New York.
2
3 FOR RESPONDENT: Tony West, Assistant Attorney
4 General, Civil Division; Susan
5 Houser, Senior Litigation Counsel;
6 Marion E. Guyton, Trial Attorney
7 United States Department of Justice,
8 Washington, D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Petitioner Han Li, a native and citizen of the People’s
15 Republic of China, seeks review of a December 1, 2008 order
16 of the BIA affirming the September 5, 2007 decision of
17 Immigration Judge (“IJ”) Robert Weisel denying Li’s
18 application for asylum, withholding of removal, and relief
19 under the Convention Against Torture (“CAT”). In re Han Li,
20 No. A 093 397 439 (B.I.A. Dec. 1, 2008), aff’g No. A 093 397
21 439 (Immig. Ct. N.Y. City Sept. 5, 2007). We assume the
22 parties’ familiarity with the underlying facts and
23 procedural history in this case.
24 When the BIA does not expressly “adopt” the IJ’s
25 decision, but its brief opinion closely tracks the IJ’s
26 reasoning, the Court may consider both the IJ’s and the
2
1 BIA’s opinions for the sake of completeness. Zaman v.
2 Mukasey, 514 F.3d 233, 236 (2d Cir. 2008). We review the
3 agency’s factual findings under the substantial evidence
4 standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S.
5 Dep’t of Homeland Sec.,
494 F.3d 281, 289 (2d Cir. 2007).
6 We review de novo questions of law and the application of
7 law to undisputed fact. Salimatou Bah v. Mukasey,
529 F.3d
8 99, 110 (2d Cir. 2008).
9 I. Family Planning Claim
10 Li argues that the agency erred in concluding that she
11 failed to demonstrate her eligibility for asylum,
12 withholding of removal, and CAT relief based on the birth of
13 her children in this country. However, this argument fails
14 where we have previously reviewed the agency’s consideration
15 of similar evidence and have found no error in its
16 conclusion that such evidence was insufficient to establish
17 an objectively reasonable fear of persecution. See Jian Hui
18 Shao v. Mukasey,
546 F.3d 138, 156-65 (2d Cir. 2008).
19 Although Li submitted evidence showing that her father and a
20 neighbor were sterilized more than ten years ago, she did
21 not present evidence indicating that individuals similarly
22 situated to her – those with U.S.-born children – are
3
1 currently subject to persecution for violating the family
2 planning policy. See id. at 160.
3 II. Falun Gong Claim
4 Li also argues that the agency erred by failing to find
5 that she demonstrated a well-founded fear of persecution
6 based on her practice of Falun Gong. In support of that
7 claim, she argues that the documentary evidence indicates
8 that China has banned the practice of Falun Gong and has
9 arrested and detained Falun Gong practitioners. Li
10 correctly notes that the record indicates that Falun Gong
11 practitioners have been arrested, detained, and subject to
12 severe mistreatment. Thus, the BIA’s observation that Li is
13 not an activist, teacher, or leader in the Falun Gong
14 movement is likely an insufficient basis upon which to
15 conclude that her fear is not well-founded. However, even
16 if we were to find that the agency erred in that respect,
17 remand is not required because the agency offered a valid
18 alternative basis for its denial of relief. See Xiao Ji
19 Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 335 (2d Cir.
20 2006). The BIA reasonably found that Li did not establish
21 that her practice was likely to come to the attention of
22 Chinese authorities. As we have held, “to establish a
4
1 well-founded fear of persecution in the absence of any
2 evidence of past persecution, an alien must make some
3 showing that authorities in his country of nationality are
4 either aware of his activities or likely to become aware of
5 his activities.” See Hongsheng Leng v. Mukasey, 528 F.3d
6 135, 143 (2d Cir. 2008); see also Jian Xing Huang v. INS,
7
421 F.3d 125, 128-29 (2d Cir. 2005) (holding that, absent
8 solid support in the record for the petitioner’s assertion
9 that he would be persecuted, his fear was “speculative at
10 best”). Here, the BIA did not err in concluding that Li,
11 who only began her practice of Falun Gong after entering
12 this country, did not show that Chinese authorities were
13 likely to become aware of her activities. See Hongsheng
14
Leng, 528 F.3d at 143.
15 Because Li was unable to show the objective likelihood
16 of persecution needed to make out an asylum claim, she was
17 necessarily unable to meet the higher standard required to
18 succeed on a claim for withholding of removal or CAT relief
19 where all three claims bore the same factual predicate. See
20 Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir. 2006); Kyaw
21 Zwar Tun v. INS,
445 F.3d 554, 567 (2d Cir. 2006) (holding
22 that torture is “something more severe than the kind of
23 treatment that would suffice to prove persecution”).
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any pending motion
3 for a stay of removal in this petition is DISMISSED as moot.
4 Any pending request for oral argument in this petition is
5 DENIED in accordance with Federal Rule of Appellate
6 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
11
6
