         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




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