         09-3904-ag
         Liu v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A078 746 840


                          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 24 th day of August,           two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                         Chief Judge,
 9                DEBRA ANN LIVINGSTON,
10                DENNY CHIN,
11                         Circuit Judges.
12       _______________________________________
13
14       HONG YAN LIU,
15                Petitioner,
16
17                       v.                                     09-3904-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Feng Li, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General, Francis W. Fraser, Senior
28                                     Litigation Counsel, Kate D. Balaban,
29                                     Attorney, Office of Immigration
30                                     Litigation, Civil Division, United
31                                     States Department of Justice,
32                                     Washington, D.C.
33
     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             Petitioner Hong Yan Liu, a native and citizen of China,

6        seeks review of the August 31, 2009, order of the BIA,

7        affirming the December 14, 2007, decision of Immigration

8        Judge (“IJ”) Alan A. Vomacka, denying her application for

9        asylum, withholding of removal, and relief under the

10       Convention Against Torture (“CAT”).     In re Hong Yan Liu, No.

11       A078 746 840 (B.I.A. Dec. 14, 2007), aff’g No. A078 746 840

12       (Immig. Ct. N.Y. City Aug. 31, 2009).     We assume the

13       parties’ familiarity with the underlying facts and

14       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

18       applicable standards of review are well-established.      See 8

19       U.S.C. § 1252(b)(4)(B); Salimatou Bah v. Mukasey, 529 F.3d

20       99, 110 (2d Cir. 2008).

21       I.   Mandatory Gynecological Examinations

22            The BIA found that even assuming Liu had engaged in

23       “other resistance” and that the mandatory gynecological

24       examinations she underwent constituted persecution, there

                                      2
1    was “no nexus between [her] experiences and a desire by

2    Chinese officials to punish her.”     In her brief before us,

3    Liu argues that the BIA erred in making its nexus finding.

4    Specifically, Liu argues that if she returns to China she

5    will be forced to undergo mandatory gynecological

6    examinations “partly on account of . . . her resistance to

7    the family planning policy” (i.e., fleeing China to avoid

8    future gynecological examinations).     However, Liu points to

9    nothing in the record to support her argument that the

10   gynecological examinations she underwent, or may have to

11   undergo in the future, would be performed on account of her

12   resistance to the policy.   In fact, in Liu’s asylum

13   application, she asserted that “[i]n her village, women over

14   18 are required to undertake a gynecological checkup every

15   quarter, regardless [of whether] they are married.”

16   Therefore, contrary to Liu’s argument, the BIA reasonably

17   determined that the gynecological examinations that she

18   underwent were “not designed to persecute [her] for

19   resisting the family planning policy, but rather were part

20   of a standard procedure in China to prevent early or too

21   many pregnancies, or educate women about the policy.”     See 8

22   U.S.C. § 1252(b)(4)(B); Matter of M-F-W- & L-G-, 24 I. & N.

23   Dec. 633, 637 (BIA 2008).   Therefore, Liu’s argument that

24   she established a nexus between her resistance and the

                                   3
1    gynecological examinations fails.      See 8 U.S.C.

2    § 1101(a)(42).

3    II.   Well-founded Fear of Future Persecution Based on Birth

4          of U.S. Citizen Child

5          Liu also asserts that she has a well-founded fear of

6    future persecution based on the birth of her U.S. citizen

7    child.   In Jian Hui Shao v. Mukasey, this Court found no

8    error in the evidentiary framework the BIA had adopted in

9    analyzing claims, like Liu’s, based on a fear arising from

10   the birth of children.   546 F.3d 138, 143 (2d Cir. 2008).

11   Under that framework, the alien must: “(1) identif[y] the

12   government policy implicated by the births at issue, (2)

13   establish[] that government officials would view the births

14   as a violation of the policy, and (3) demonstrate[] a

15   reasonable possibility that government officials would

16   enforce the policy against petitioner through means

17   constituting persecution.”     Id.   Liu’s claim fails at each

18   prong because she only has one child who has lived with

19   grandparents in China since infancy.      The evidence that she

20   presented concerned the government’s treatment of citizens

21   with more than one child.     As the BIA noted, even assuming

22   that Chinese authorities discovered that Liu’s child was

23   residing in China, the evidence that she submitted failed to

24   demonstrate that she would be forcibly sterilized for having

                                     4
1    one child.   See id.   Moreover, Liu’s assertion in her brief

2    that she “would be subject to monitoring and controlling,”

3    does not suggest that the policy would be enforced through

4    means constituting persecution.    Id.    Thus, to the extent

5    Liu based her asylum application on an alleged fear based on

6    a single child, the BIA did not err in finding that her fear

7    was not objectively reasonable.    Id. at 142-43; 8 C.F.R.

8    § 1208.13(b)(2).

9        Because Liu was unable to demonstrate her eligibility

10   for asylum, the agency reasonably denied her application for

11   withholding of removal and CAT relief, as it was based on

12   the same factual predicate.    See Paul v. Gonzales, 444 F.3d

13   148, 156 (2d Cir. 2006).

14       For the foregoing reasons, the petition for review is

15   DENIED.   As we have completed our review, any stay of

16   removal that the Court previously granted in this petition

17   is VACATED, and any pending motion for a stay of removal in

18   this petition is DISMISSED as moot.      Any pending request for

19   oral argument in this petition is DENIED in accordance with

20   Federal Rule of Appellate Procedure 34(a)(2), and Second

21   Circuit Local Rule 34.1(b).

22
23                                 FOR THE COURT:
24                                 Catherine O’Hagan Wolfe, Clerk
25




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