    12-4232
    Li v. Holder
                                                                                  BIA
                                                                          A077 569 382
                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 5th day of May, two thousand fourteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             GERARD E. LYNCH,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    SU YING LI,
             Petitioner,

                   v.                                      12-4232
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               WaiSim M. Cheung, Tsoi and
                                  Associates, New York, New York.

    FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
                                  General; Stephen J. Flynn, Assistant
                                  Director; Lynda A. Do, Attorney,
                                  Civil Division, Office of
                                  Immigration Litigation, 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 DISMISSED in part and DENIED in part.

    Su Ying Li, a native and citizen of the People’s

Republic of China, seeks review of an October 12, 2011,

order of the BIA affirming the February 23, 2010, decision

of Immigration Judge (“IJ”) Helen Sichel, pretermitting her

application for asylum and denying her application for

withholding of removal and relief under the Convention

Against Torture (“CAT”), see Su Ying Li, No. A077 569 382

(B.I.A. Oct. 12, 2012), aff’g No. No. A077 569 382 Immig.

Ct. N.Y. City Feb. 23, 2010), and the BIA’s September 27,

2012 order denying her motion to remand or reopen

proceedings, see Su Ying Li, No. A077 569 382 (B.I.A. Sept.

27, 2012).   We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

    First, we lack jurisdiction to review the agency’s

pretermission of an asylum application as untimely, unless a

petitioner raises constitutional claims or questions of law.

See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).   To the extent Li

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argues that the IJ erred in finding that the 2003 birth of

her second child made her eligible for asylum, thus

rendering her 2007 application untimely, she challenges the

IJ’s fact-finding, which we lack jurisdiction to review. 8

U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).   To the extent Li

argues that her 2007 asylum application was timely because

she filed a timely application in 1999 – which she later

withdrew, after admitting that the allegations contained

therein were false – even assuming that she raises a

question of law, we can find no support for the proposition

that a withdrawn, fabricated asylum application can excuse a

later, untimely application filed after entry of a removal

order.

    As to withholding of removal and CAT relief, under the

circumstances of this case, we have reviewed the IJ’s

decision as supplemented by the BIA.   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); see also Yanqin Weng v. Holder, 562 F.3d

510, 513 (2d Cir. 2009).

    We conclude that substantial evidence supports the

agency’s adverse credibility determination.    Under the


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doctrine of falsus in uno, falsus in omnibus, the agency was

permitted to allow Li’s earlier fabricated asylum

application to cast doubt on her credibility.     See Siewe v.

Gonzales, 480 F.3d 160, 170 (2d Cir. 2007).     Additionally,

the agency reasonably concluded that Li’s testimony that her

mother volunteered information about Li’s children to the

family-planning authorities was implausible given Li’s

knowledge of the family-planning policy and belief that she

would be subject to sterilization should the authorities

learn that she had more than one child.    See Wensheng Yan v.

Mukasey, 509 F.3d 63, 67-68 (2d Cir. 2007).     Finally, the

agency was not required to credit Li’s assertion that she

knew of a woman who was forcibly sterilized, as she did not

corroborate the assertion and conceded that she had heard

the story second hand.    Accordingly, viewing the totality of

the circumstances, the agency did not err in finding that Li

was not credible.   Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167

(2d Cir. 2008).

    Moreover, we see no error in the agency’s alternative

finding that even assuming the credibility of Li’s

testimony, Li did not provide objective evidence that she

would face persecution on the basis of her violation of the

family-planning policy.    As the agency pointed out, Li

                               4
provided affidavits from women who claimed to have undergone

forced sterilization, but the affidavits contained no

indication that the two women were similarly situated to Li.

See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.

2005).   Further, a document obtained by Li’s mother from the

family-planning office was unauthenticated and was obtained

for the purposes of the immigration proceedings.   See Matter

of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214 & n.5 (BIA

2010), overruled in part on other grounds by Hui Lin Huang

v. Holder, 677 F.3d 130 (2d Cir. 2012).   Additionally,

although Li documented the 2004 Fujian province family-

planning policy, her allegations regarding the enforcement

of the policy were contradicted by later State Department

reports indicating that enforcement is “lax” in Fujian.

    Turning to the BIA’s denial of reopening or remand on

the ground that Li did not show her prima facie eligibility

for asylum based on her conversion to Christianity, we find

no abuse of discretion.   See Ali v. Gonzales, 448 F.3d 515,

517 (2d Cir. 2006).   A movant’s failure to establish prima

facie eligibility for relief is valid grounds to deny a

motion to reopen, see INS v. Abudu, 485 U.S.   94, 104-05

(1988), and contrary to Li’s position, the BIA applied the


                              5
correct standard, explicitly referencing the requirement of

a prima facie showing.

    Nor did the BIA abuse its discretion in finding that Li

failed to establish her prima facie eligibility for relief

from removal.   Because Li converted to Christianity in the

United States and did not suffer past persecution on the

basis of her religion, she was required to establish a well-

founded fear of future persecution by showing either that

she would be individually targeted or that there was a

pattern or practice of persecution of similarly situated

people.   See 8 U.S.C. § 1101(a)(42); 8 C.F.R.

§§ 1208.13(b)(2)(iii), 1208.16(b)(3).   However, Li presented

no evidence that authorities in Fujian province are aware of

her conversion, or that there is a policy of persecuting

believers in Fujian, as the evidence of those harmed related

mainly to church leaders.   See Hongsheng Leng v. Mukasey,

528 F.3d 135, 143 (2d Cir. 2008) (to demonstrate would be

individually targeted, “an alien must make some showing that

authorities in [her] country of nationality are either aware

of [her] activities or likely to become aware of [her]

activities”); 8 C.F.R. §§ 1208.13(b)(2)(iii),

1208.16(b)(2)(ii) (requiring applicant claiming a pattern or

                              6
practice of persecution to establish that she is similarly

situated to individuals in the group).

    For the foregoing reasons, the petition for review is

DISMISSED in part as to the pretermission of asylum and

DENIED in remaining part.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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