         09-2211-ag
         Liu v. Holder
                                                                                       BIA
                                                                                Simmons, IJ
                                                                               A095 716 973
                              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 10 th day of March, two thousand ten.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                REENA RAGGI,
 9                RICHARD C. WESLEY,
10                      Circuit Judges.
11       _______________________________________
12
13       YA-ZHEN LIU,
14                Petitioner,
15
16                       v.                                     09-2211-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL, UNITED STATES
20       DEPARTMENT OF JUSTICE,
21                Respondents.
22       _______________________________________
23
24       FOR PETITIONER:               Waisim M. Cheung, New
25                                     York, New York.
1    FOR RESPONDENTS:        Tony West, Assistant Attorney
2                            General, Civil Division, Linda S.
3                            Wernery, Assistant Director, Kerry
4                            A. Monaco, Trial Attorney, Office of
5                            Immigration Litigation, U.S.
6                            Department of Justice, Washington,
7                            D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

10   decision of the Board of Immigration Appeals (“BIA”), it is

11   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

12   review is DENIED.

13       Ya-Zhen Liu, a native and citizen of China, seeks

14   review of the April 27, 2009 order of the BIA: (1) affirming

15   the March 14, 2007 decision of Immigration Judge (“IJ”)

16   Theresa Holmes-Simmons, denying her application for asylum,

17   withholding of removal, and relief under the Convention

18   Against Torture (“CAT”); and (2) denying her motion to

19   remand.   In re Ya-Zhen Liu, No. A095 716 973 (B.I.A. Apr.

20   27, 2009), aff’g No. A095 716 973 (Immig. Ct. N.Y. City Mar.

21   14, 2007).   We assume the parties’ familiarity with the

22   underlying facts and procedural history of the case.

23       As an initial matter, Liu does not challenge the

24   agency’s findings that her credibility was undermined

25   because: (1) during her testimony, she was unable to provide

26   the address, location, or name of the church that she had


                                   2
1    allegedly attended in New York for four months; and (2) her

2    testimony that her pastor’s name was Hua Zheng Zhi was

3    inconsistent with a letter that she had submitted, which was

4    allegedly from her pastor, and signed Rev. Andrew Thi.

5    Thus, she has waived any challenge to those findings, see

6    Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7

7    (2d Cir. 2005), and they stand as valid bases for the IJ’s

8    adverse credibility determination, see Shunfu Li v. Mukasey,

9    529 F.3d 141, 146-147 (2d Cir. 2008).    As the BIA noted,

10   moreover, Liu failed to exhaust on appeal any challenge to

11   the IJ’s finding of a discrepancy between her testimony and

12   a letter from her parents regarding whether they were

13   arrested and detained in China because of their religious

14   beliefs.    We decline to consider in the first instance the

15   argument she now raises before this Court.    Lin Zhong v.

16   U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).

17       We decline to consider Liu's challenges to the agency's

18   other credibility findings.    Even if they were in error,

19   remand would be futile as we can confidently predict that

20   the agency would reach the same conclusion in any event on

21   remand.    See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

22   315, 335 (2d Cir. 2006).    Ultimately, because substantial

23   evidence supported the agency’s adverse credibility

                                    3
1    determination, it properly denied Liu’s application for

2    asylum, withholding of removal, and CAT relief because the

3    only evidence that she would be persecuted or tortured

4    depended on her credibility.    See Paul v. Gonzales, 444 F.3d

5    148, 156 (2d Cir. 2006).

6        Nor did the BIA abuse its discretion in denying Liu’s

7    motion to remand.   See Li Yong Cao v. Dep't of Justice, 421

8    F.3d 149, 151 (2d Cir. 2005).       With respect to Liu’s fear of

9    forced sterilization based on her first pregnancy, we find

10   no error in the agency’s conclusion that she failed to

11   demonstrate her prima facie eligibility for relief.       To

12   establish asylum eligibility based on a fear of future

13   persecution, an applicant must show that he or she

14   subjectively fears persecution and that this fear is

15   objectively reasonable.    Ramsameachire v. Ashcroft, 357 F.3d

16   169, 178 (2d Cir. 2004).    In denying Liu’s motion, the BIA

17   determined that she failed to demonstrate a “realistic

18   chance” that she could succeed on her family planning claim.

19   As the BIA noted, she never presented evidence demonstrating

20   that she had violated the family planning policy, and thus,

21   failed to demonstrate her prima facie eligibility for

22   relief.   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 143 (2d

23   Cir. 2008).   We have previously reviewed the agency’s


                                     4
1    consideration of evidence similar to that which Liu

2    submitted and have found no error in its conclusion that it

3    is insufficient to establish an objectively reasonable fear

4    of persecution.   See id. at 156-65.

5        For the foregoing reasons, the petition for review is

6    DENIED.

 7                               FOR THE COURT:
 8                               Catherine O’Hagan Wolfe, Clerk
 9
10
11




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