Filed: Jul. 22, 2010
Latest Update: Feb. 22, 2020
Summary: 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 (WI
Summary: 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 (WIT..
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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
