Filed: Feb. 07, 2011
Latest Update: Feb. 21, 2020
Summary: 09-4748-ag Liu v. Holder BIA McManus, IJ A098 906 657 A098 906 658 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 DATABAS
Summary: 09-4748-ag Liu v. Holder BIA McManus, IJ A098 906 657 A098 906 658 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..
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09-4748-ag
Liu v. Holder
BIA
McManus, IJ
A098 906 657
A098 906 658
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 7th day of February, two thousand eleven.
PRESENT:
JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
Circuit Judges.
_______________________________________
MEI HUI LIU, ANTONIO XU LIU,
Petitioners,
v. 09-4748-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONERS: Dehai Zhang, Flushing, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Ada E. Bosque, Senior
Litigation Counsel; Puneet Cheema,
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
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioners Mei Hui Liu (“Mei”), a native of China and
citizen of Venezuela, and her son Antonio Xu Liu, a native
and citizen of Venezuela, seek review of an October 22, 2009
decision of the BIA affirming the January 10, 2008 decision
of Immigration Judge (“IJ”) Margaret McManus denying their
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Mei Hui
Liu, Antonio Xu Liu, Nos. A098 906 657/658 (B.I.A. Oct. 22,
2009), aff’g Nos. A098 906 657/658 (Immig. Ct. N.Y. City
Jan. 10, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
Under the circumstances of this case, we review the
IJ’s decision as supplemented by the BIA’s opinion. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established.
See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562
F.3d 510, 513 (2d Cir. 2009).
As an initial matter, petitioners have failed to
2
meaningfully argue in their appellate brief that: (1) they
are entitled to asylum or withholding of removal because of
persecution on account of Mei’s membership in a particular
social group; or (2) they are entitled to CAT relief.
Accordingly, we do not address those arguments. See Yueqing
Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.
2005).
The government also contends that because petitioners
did not raise before the BIA two alleged incidents in which
the Venezuelan police forced Mei to produce her identity
card and required payments before releasing her, we lack
jurisdiction to consider the arguments regarding those
incidents that appear in the petitioners’ brief. We do not
decide the issue, but assume arguendo that we may consider
arguments regarding those incidents because they are
“specific, subsidiary legal arguments, or arguments by
extension” in relation to the petitioners’ arguments before
the BIA. Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005); see
also Steevenez v. Gonzales,
476 F.3d 114, 117 (2d Cir. 2007)
(issue exhaustion is mandatory, not jurisdictional). Even
considering those arguments, however, we conclude that the
agency reasonably determined that petitioners failed to
3
demonstrate that they were targeted on account of their race
or ethnicity.
The agency found that while the petitioners were the
frequent victims of crime in Venezuela, they did not
establish that they were targeted because they were ethnic
Chinese or that there was a pattern or practice of
persecution of ethnic Chinese persons in Venezuela.
Petitioners argue that the agency erred in ignoring the
background conditions which establish that their past
mistreatment was on account of their race and that there is
a pattern and practice of discrimination against the ethnic
Chinese in Venezuela. However, there is no indication that
the agency ignored any material evidence. See Xiao Ji Chen
v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir.
2006) (“[W]e presume that an IJ has taken into account all
of the evidence before h[er], unless the record compellingly
suggests otherwise.”). In fact, the agency specifically
addressed the background evidence, stating that it had
considered this information and that, while the background
materials indicated that human rights abuses have been
taking place in Venezuela, these materials did not establish
that there is widespread discrimination against Chinese
4
persons.
Moreover, the agency’s denial of relief is supported by
substantial evidence. The agency reasonably concluded that
the petitioners, although they were the unfortunate victims
of general crime, failed to establish that they were
persecuted in the past or would be persecuted in the future
on account of a protected ground. See Melgar de Torres v.
Reno, 191 F.3d 307, 314 (2d Cir. 1999) (explaining that the
existence of general crime does not support an asylum
claim). The petitioners provided no evidence of the
motivations of the perpetrators, beyond Mei’s speculation
that the police targeted the Chinese for identity checks,
which the agency reasonably noted was without any support in
the record. The news articles that the petitioners
provided, which note a single anti-Chinese riot and that
some ethnic Chinese persons have been the victims of crime,
do not compel the conclusion that the Venezuelan government
or people generally discriminate against the ethnic Chinese.
Cf. Xiao Ji
Chen, 471 F.3d at 342 (holding that the weight
afforded to State Department country reports lies largely
within the discretion of the agency). Rather, as the agency
noted, the State Department’s 2004 and 2005 reports on
5
conditions in Venezuela, which were part of the agency
record, did not even mention discrimination against the
ethnic Chinese. See id. at 341 (“[A] report from the State
Department is usually the best available source of
information on country conditions.” (internal quotation
marks omitted)).
Thus, the agency reasonably decided that petitioners
did not meet their burden of proving past persecution or a
well-founded fear of future of persecution on account of a
protected ground. See 8 U.S.C. § 1101(a)(42). Because the
petitioners were unable to meet their burden for asylum,
they necessarily failed to meet the higher burden required
to succeed on a claim for withholding of removal. See Paul
v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Gomez v. INS,
947 F.2d 660, 665 (2d Cir. 1991).
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
6
