         09-2169-ag
         Li v. Holder
                                                                                        BIA
                                                                              Reichenberg, IJ
                                                                               A077 660 439
                                                                               A098 586 518
                         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 2 nd day of March, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                       Chief Judge,
 9                JOSEPH M. McLAUGHLIN,
10                GERARD E. LYNCH,
11                       Circuit Judges.
12       _______________________________________
13
14       YUE XIAN LI, CUN XI ZHENG,
15                Petitioners,
16
17                      v.                                      09-2169-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONERS:              Yimin Chen, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Ernesto H. Molina, Jr.,
28                                     Assistant Director; Drew C.
29                                     Brinkman, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED, that the petition for review

4    is DENIED.

5        Yue Xian Li and Cun Xi Zheng, natives and citizens of

6    the People’s Republic of China, seek review of an April 24,

7    2009, order of the BIA affirming the June 21, 2007, decision

8    of Immigration Judge (“IJ”) Margaret R. Reichenberg, which

9    denied their application for asylum, withholding of removal,

10   and relief under the Convention Against Torture (“CAT”). 1

11   In re Yue Xian Li, Cun Xi Zheng, Nos. A077 660 439/A098 586

12   518 (B.I.A. Apr. 24, 2009), aff’g Nos. A077 660 439/A098 586

13   518 (Immig. Ct. N.Y. City June 21, 2007).   We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history in this case.

16       Under the circumstances of this case, we review the

17   IJ’s decision as modified by the BIA’s decision.     See Xue

18   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

19   Cir. 2005).   The applicable standards of review are well-

20   established. See 8 U.S.C. § 1252(b)(4)(B); see also Manzur

21   v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.

22   2007).

              1
            Cun Xi Zheng and Yue Xian Li are husband and wife.
       This order refers to them collectively as “Petitioners.”

                                   2
1    I.   Asylum and Withholding of Removal

2         Substantial evidence supports the agency’s adverse

3    credibility determination.     Petitioners admit that they

4    fabricated their claim that Li underwent a forced abortion

5    and that they submitted fraudulent documents in support of

6    that claim.     They argue, however, that because they

7    voluntarily recanted their false claim, it cannot be the

8    basis for an adverse credibility finding.     They explain that

9    because they were uneducated and did not speak English, they

10   were left with no other choice but to assert the claim given

11   to them by the snakehead and immigrant service agency that

12   were assisting them.     We are not unsympathetic to this

13   argument, having recognized that immigrants are a

14   “vulnerable population . . . who often arrive unfamiliar

15   with our language and culture, in economic deprivation and

16   in fear.”     Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir.

17   2008).   Yet, a lthough applicants should be encouraged to

18   recant false testimony and disavow fraudulent evidence, it

19   does not follow that the agency must credit testimony and

20   evidence the applicant later presents.     Here, the IJ did not

21   err in applying the maxim falsus in uno, falsus in omnibus,

22   and disbelieving Petitioners’ new claim involving a forced


                                     3
1    IUD insertion.     See Siewe v. Gonzales, 480 F.3d 160, 170 (2d

2    Cir. 2007) (finding that once an IJ concludes that a

3    document is false, he or she is, subject to certain

4    limitations, “free to deem suspect other documents (and to

5    disbelieve other testimony) that depend for probative weight

6    upon [the applicant’s] veracity”).

7          Accordingly, the credibility determination was

8    supported by substantial evidence.     The IJ’s adverse

9    credibility determination is fatal to Petitioners’ challenge

10   to the denial of their application for asylum and

11   withholding of removal. 2   See Paul v. Gonzales, 444 F.3d

12   148, 154-55 (2d Cir. 2006).

13   II.   CAT Relief

14         Petitioners also assert that they are eligible for CAT

15   relief based on their illegal departure from China and that

16   the agency erred in failing to consider that claim.

17   Petitioners are correct that neither the IJ nor the BIA

18   specifically addressed their claim that they would be jailed



             2
              Although both the BIA and the IJ rejected
       Petitioners’ claim of a fear of future persecution based
       on the birth of their three children, Petitioners do not
       challenge that determination here. Accordingly, we deem
       any such challenge waived. See Yueqing Zhang v.
       Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).


                                     4
1    and tortured for illegally departing China.      Yet even

2    assuming this was error, see Ramsameachire v. Ashcroft, 357

3    F.3d 169, 184-85 (2d Cir. 2004)(“[T]he BIA's decision with

4    respect to an alien's claims for asylum and withholding of

5    removal . . . should never . . . be determinative of the

6    alien's CAT claim.”), we decline to remand because doing so

7    would be futile, see Xiao Ji Chen v. U.S. Dep’t of Justice,

8    471 F.3d 315, 339 (2d Cir. 2006).   As we have held time and

9    again, the BIA does not err in finding applicants ineligible

10   for CAT relief when they claim only that they would be

11   imprisoned in China for their illegal departure and that

12   torture occurs in Chinese prisons. See Mu Xiang Lin v. U.S.

13   Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005); see

14   also Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.

15   2003) (requiring an alien to demonstrate that someone in his

16   “particular alleged circumstances” would more likely than

17   not be tortured).   Because Petitioners make precisely this

18   claim, and allege no particular circumstances indicating a

19   likelihood that they will be tortured, we can “‘confidently

20   predict’ that the agency would reach the same decision” were

21   we to remand.   Xiao Ji Chen, 471 F.3d at 339.

22       For the foregoing reasons, the petition for review is

23   DENIED.   As we have completed our review, the temporary stay
                                    5
1   of removal that the Court previously granted in this

2   petition is VACATED, and the pending motion for a stay of

3   removal in this petition is DISMISSED as moot.

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6
7




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