         10-569-ag
         Liu v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A094 824 987


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                              AMENDED 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 New
 4       York, on the 22nd day of March, two thousand eleven.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                PETER W. HALL,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _______________________________________
12
13       XIAOBIN LIU,
14                Petitioner,
15
16                       v.                                     10-569-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Nathan Weill, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney General;
26                                     Keith I. McManus, Senior Litigation
27                                     Counsel; Timothy G. Hayes, Trial
28                                     Attorney,    Office   of   Immigration
29                                     Litigation, United States Department
30                                     of Justice, Washington, D.C.
31
32
     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 is

     4   DISMISSED in part, DENIED in part, and GRANTED in part.

 5           Xiaobin Liu, a native and citizen of China, seeks review

 6       of a January 20, 2010, decision of the BIA affirming the March

 7       12, 2008, decision of Immigration Judge (“IJ”) Barbara A.

 8       Nelson, which denied her application for asylum, withholding

 9       of removal, and relief under the Convention Against Torture

10       (“CAT”), based on the forcible insertion of an intrauterine

11       device (“IUD”).   In re Xiaobin Liu, No. A094 824 987 (B.I.A.

12       Jan. 20, 2010), aff’g No. A094 824 987 (Immig. Ct. N.Y. City

13       Mar. 12, 2008).   We assume the parties’ familiarity with the

14       underlying facts and procedural history in this case.

15           Under the circumstances of this case, we review the

16       decision of the IJ as supplemented by the BIA.    See Yan Chen

17       v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable

18       standards of review are well-established.        See 8 U.S.C.

19       § 1252(b)(4); see also Salimatou Bah v. Mukasey, 529 F.3d 99,

20       110-11 (2d Cir. 2008); Manzur v. DHS, 494 F.3d 281, 289 (2d

21       Cir. 2007).

22



                                       2
 1        We first address our jurisdiction over Liu’s claim that

 2   the agency erred in determining that her application for

 3   asylum was untimely.          Section 1158(a)(3) of Title 8 of the

 4   United     States    Code     provides     that   no   court    shall     have

 5   jurisdiction to review the agency’s finding that an asylum

 6   application was untimely under 8 U.S.C. § 1158(a)(2)(B) or its

 7   finding of neither changed nor extraordinary circumstances

 8   excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D).

 9   Notwithstanding        that      provision,       however,      we      retain

10   jurisdiction to review “constitutional claims” and “questions

11   of law.”     8 U.S.C. § 1252(a)(2)(D).

12        Liu argues first that the agency erred as a matter of law

13   by   allegedly      determining    that     credible     testimony      alone,

14   without     corroboration,        cannot     establish     by   clear      and

15   convincing evidence that an asylum application was filed

16   within one year of entry into the United States.                     To the

17   contrary, however, the agency found that, based on the lack of

18   credible detail and consistency in Liu’s testimony, Liu did

19   not demonstrate by clear and convincing evidence her date of

20   entry into the United States.            This finding by the agency was

21   a factual determination regarding the timeliness of Liu’s

22   asylum application that we lack jurisdiction to review.                    See



                                          3
 1   8 U.S.C. § 1158(a)(3); Xiao Ji Chen v. U.S. Dep’t of Justice,

 2   471 F.3d 315, 323-32 (2d Cir. 2006).

 3        Liu also argues that her constitutional due process

 4   rights were violated when the IJ declined to grant her a

 5   continuance in order to present a witness who allegedly could

 6   testify as to her date of entry into the United States.

 7   However, “[a] petitioner may not create the jurisdiction that

 8   Congress chose to remove simply by cloaking an abuse of

 9   discretion argument in constitutional garb.”         Saloum v. U.S.

10   CIS, 437 F.3d 238, 243 (2d Cir. 2006) (quoting Torres-Aguilar

11   v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001)); see also Xiao Ji

12   Chen, 471 F.3d at 330-32.      Here, Liu simply re-characterizes

13   an   allegation   that   the   IJ   abused   her   discretion   as   a

14   constitutional issue.     Saloum, 437 F.3d at 243.     Accordingly,

15   because Liu has failed to present any constitutional claim or

16   question of law regarding the agency’s finding that her

17   application was untimely, we lack jurisdiction to review the

18   IJ’s denial of her asylum claim.        See 8 U.S.C. 1158(a)(3);

19   Xiao Ji Chen, 471 F.3d at 323-32.

20        Regardless whether her application for asylum was timely,

21   see supra, we may review Liu’s challenge to the agency’s




                                         4
 1   disposition      of   her    withholding    of   removal   claim.*      Liu

 2   contends that the IJ abused her discretion in denying a

 3   continuance as to this claim.              An IJ has the authority to

 4   grant    a     continuance    “for   good    cause   shown,”   8     C.F.R.

 5   § 1003.29, and we review the BIA’s affirmance of an IJ’s

 6   decision to deny a motion for a continuance for abuse of

 7   discretion, see Kulwinder Singh v. U.S. DHS, 526 F.3d 72, 81

 8   (2d Cir. 2008); Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir.

 9   2006).       In this case, the IJ did not abuse her discretion in

10   denying the continuance, as Liu had ample opportunity to

11   introduce corroborative evidence regarding her arrival date.

12   See Morgan v. Gonzales, 445 F.3d 549, 551-53 (2d Cir. 2006).

13       Lastly, Liu contends that the agency erred in determining

14   that she did not establish that she suffered past persecution

15   based on the forcible insertion of an IUD.             In light of our

16   decision in Mei Fun Wong v. Holder, —--F.3d---, 2011 WL 293762

17   (2d Cir. Feb. 1, 2011), we remand this claim to the agency for

18   further proceedings.

19       To establish past persecution based on the involuntary

20   insertion of an IUD, Liu must establish that (1) the IUD was

              *
            Because Liu has failed sufficiently to argue her
       eligibility for CAT relief before this Court, we deem any
       such argument waived. See Yeuqing Zhang v. Gonzales, 426
       F.3d 540, 541 n.1, 547 n.7 (2d Cir. 2005).
                                          5
 1   inserted because of her resistance to a family planning

 2   policy, or another protected ground, rather than as a routine

 3   part of the population control program; and (2) the IUD

 4   insertion was accompanied by “aggravating circumstances.” Xia

 5   Fan Huang v. Holder, 591 F.3d 124, 128-30 (2d Cir. 2010)

 6   (according Chevron deference to the BIA’s decision in Matter

 7   of M-F-W- & L-G-, 24 I. & N. Dec. 633 (BIA 2008)).                In Mei Fun

 8   Wong, however, we remanded for the BIA to articulate standards

 9   for determining whether an asylum applicant has established

10   aggravating circumstances and to clarify how it determines

11   whether the applicant was subjected to the forcible insertion

12   of an IUD on account of her resistance to China’s family

13   planning policy or other protected grounds.                 Mei Fun Wong,

14   2011 WL 293762, at *10-*15.      For the reasons discussed in Mei

15   Fun   Wong,     we   cannot    adequately            evaluate   the   BIA’s

16   determination    here   that   Liu       did   not    establish    that   she

17   suffered past persecution when she was subjected to the

18   forcible insertion of an IUD.        Id.       Thus, we remand this case

19   to the BIA for further proceedings in light of Mei Fun Wong.

20         For the foregoing reasons, the petition for review is

21   DISMISSED in part, DENIED in part, and GRANTED in part; the

22   order of removal is VACATED; and the case is REMANDED to the


                                          6
1   BIA for proceedings consistent with this decision.               Any

2   pending request for oral argument in this petition is DENIED

3   in   accordance   with   Federal   Rule   of   Appellate   Procedure

4   34(a)(2), and Second Circuit Local Rule 34.1(b).

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