         10-569-ag
         Liu v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A094 824 987
                          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 17th day of February, 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
26                                     General; Keith I. McManus, Senior
27                                     Litigation Counsel; Timothy G.
28                                     Hayes, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     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       Xiaobin Liu, a native and citizen of China, seeks

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

 7   the March 12, 2008, decision of Immigration Judge (“IJ”)

 8   Barbara A. Nelson, which denied her application for asylum,

 9   withholding of removal, and relief under the Convention

10   Against Torture (“CAT”).   In re Xiaobin Liu, No. A094 824

11   987 (B.I.A. Jan. 20, 2010), aff’g No. A094 824 987 (Immig.

12   Ct. N.Y. City Mar. 12, 2008).       We assume the parties’

13   familiarity with the underlying facts and procedural history

14   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.

19   See 8 U.S.C. § 1252(b)(4)(B); see also Salimatou Bah v.

20   Mukasey, 529 F.3d 99, 110-11 (2d Cir. 2008); Manzur v. DHS,

21   494 F.3d 281, 289 (2d Cir. 2007).

22       Title 8, Section 1158(a)(3) of the United States Code

23   provides that no court shall have jurisdiction to review the

                                     2
 1   agency’s finding that an asylum application was untimely

 2   under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither

 3   changed nor extraordinary circumstances excusing the

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

 5   Notwithstanding that provision, however, we retain

 6   jurisdiction to review constitutional claims and “questions

 7   of law.”   8 U.S.C. § 1252(a)(2)(D).    In order to determine

 8   whether jurisdiction exists in an individual case, we “study

 9   the arguments asserted” in a petition for review and

10   determine, “regardless of the rhetoric employed in the

11   petition, whether it merely quarrels over the correctness of

12   the factual findings or justification for the discretionary

13   choices, in which case the court would lack jurisdiction, or

14   whether it instead raises a ‘constitutional claim’ or

15   ‘question of law,’” in which case those particular issues

16   could be addressed.   Xiao Ji Chen v. U.S. Dep’t of Justice,

17   471 F.3d 315, 329 (2d Cir. 2006).      Here, we lack

18   jurisdiction to review the denial of Liu’s asylum

19   application as untimely because Liu has challenged only

20   purely factual determinations and the agency’s exercise of

21   discretion.

22       Liu argues that the agency erred as a matter of law in


                                   3
 1   determining that credible testimony alone, without

 2   corroboration, cannot establish, by clear and convincing

 3   evidence, that an asylum application was filed within one

 4   year of entry into the United States.       Here, however, the

 5   agency did not declare as a matter of law that an

 6   individual’s testimony alone is not enough to establish date

 7   of entry.    Rather, the agency found that, based on the lack

 8   of credible detail and consistency in Liu’s testimony

 9   regarding her trip to the United States, Liu did not

10   demonstrate, by clear and convincing evidence, her date of

11   entry into the United States.       This finding by the agency

12   was a factual determination regarding the timeliness of

13   Liu’s asylum application, which we lack jurisdiction to

14   review.     See 8 U.S.C. § 1158(a), Xiao Ji Chen, 471 F.3d at

15   323-32.

16       Liu also argues that her constitutional due process

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

18   continuance in order to present a witness who could testify

19   as to her date of entry into the United States.       However,

20   “[a] petitioner may not create the jurisdiction that

21   Congress chose to remove simply by cloaking an abuse of

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


                                     4
 1   CIS, 437 F.3d 238, 243 (2d Cir. 2006) (quoting Torres-

 2   Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001)); see

 3   also Xiao Ji Chen, 471 F.3d at 330-32.    Indeed, “[t]o hold

 4   otherwise would allow all [petitioners] ... to circumvent

 5   clear congressional intent to eliminate judicial review over

 6   discretionary decisions through the facile device of re-

 7   characterizing an alleged abuse of discretion as a ‘due

 8   process’ violation.”    Saloum, 437 F.3d at 243-44 (quoting

 9   Torres-Aguilar, 246 F.3d at 1271).    Here, Liu has not raised

10   a colorable constitutional claim by contending that the IJ

11   violated her due process rights, as she is simply re-

12   characterizing an allegation that the IJ abused her

13   discretion as a constitutional issue.*   Id.

14       Liu further contends that the IJ abused her discretion

15   in denying a continuance.    Immigration Judges have the

16   authority to grant continuances “for good cause shown.”

17   8 C.F.R. § 1003.29.    We review the BIA’s affirmance of an



           *
            Even if Liu did raise a colorable constitutional
       claim that we have jurisdiction to review, her right to
       due process was not violated, as Liu had ample
       opportunity to introduce corroborative evidence regarding
       her arrival date. See Li Hua Lin v. U.S. Dep’t of
       Justice, 453 F.3d 99, 104-05 (2d Cir. 2006) (holding that
       there is no due process violation where the IJ’s finding
       was not arbitrary and the alien was not denied a full and
       fair opportunity to present her claims).
                                  5
 1   IJ’s decision to deny a motion for a continuance for abuse

 2   of discretion.     See Kulwinder Singh v. U.S. DHS, 526 F.3d

 3   72, 81 (2d Cir. 2008); Sanusi v. Gonzales, 445 F.3d 193, 199

 4   (2d Cir. 2006).    We have noted that IJs have “broad

 5   discretion” and “are accorded wide latitude in calendar

 6   management.”     Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir.

 7   2006)(citation omitted).    An IJ abuses his discretion in

 8   denying a continuance only “if (1) his decision rests on an

 9   error of law (such as application of the wrong legal

10   principle) or a clearly erroneous factual finding or (2) his

11   decision – though not necessarily the product of a legal

12   error or a clearly erroneous factual finding – cannot be

13   located within the range of permissible decisions.”     Id. at

14   551-52 (citations, internal quotation marks, and alterations

15   omitted).   In this case, the IJ did not abuse her discretion

16   in denying the continuance, as Liu had ample opportunity to

17   introduce corroborative evidence regarding her arrival date.

18   Id.

19         Because Liu has failed to present any constitutional

20   claim or question of law related to the agency’s finding

21   that her application was untimely, Xiao Ji Chen, 471 F.3d at

22   323-32, we lack jurisdiction to review the IJ’s denial of

23   her asylum claim, see 8 U.S.C. § 1158(a).     We may, however,
                                     6
 1   review Liu’s challenge to the agency’s denial of withholding

 2   of removal.

 3       In 1996, Congress amended the definition of “refugee”

 4   to include “a person who has been forced to abort a

 5   pregnancy or to undergo involuntary sterilization, or who

 6   has been persecuted for failure or refusal to undergo such a

 7   procedure or for other resistance to a coercive population

 8   control program, . . . and a person who has a well founded

 9   fear that he or she will be forced to undergo such a

10   procedure or subject to persecution for such failure,

11   refusal, or resistance.”   8 U.S.C. § 1101(a)(42).    The BIA

12   has held that Congress did not intend to include in this

13   definition the involuntary insertion of an IUD as a per se

14   form of persecution.   See Matter of M-F-W- & L-G-, 24 I. &

15   N. Dec. 633, 636 (B.I.A. 2008).   Liu first challenges the

16   BIA’s determination in Matter of M-F-W- & L-G- that an

17   involuntary IUD insertion does not amount to persecution

18   absent “aggravating circumstances.”   Id. at 642.    We

19   recently rejected this exact argument, however, holding that

20   the BIA’s interpretation of the Immigration and Nationality

21   Act to conclude that an involuntary IUD insertion is not per

22   se grounds for asylum was entitled to deference.     Xia Fan

23   Huang v. Holder, 591 F.3d 124, 129-30 (2d Cir. 2010).

                                   7
 1   Therefore, in order to constitute persecution, an IUD

 2   insertion must involve aggravating circumstances and occur

 3   as a result of the applicant’s resistance to the family

 4   planning policy.   Id. at 128.

 5       Liu further argues that even if involuntary IUD

 6   insertion does not amount to per se persecution, the agency

 7   erred in concluding that her forcible IUD insertion did not

 8   rise to the level of persecution.    However, the BIA did not

 9   err in finding that the circumstances surrounding Liu’s

10   unwilling IUD insertion did not rise to the level of harm

11   required to establish persecution.    In her hearing at the

12   immigration court, Liu testified that the IUD resulted in

13   pain in her abdomen, bleeding, and ultimately, an infection.

14   She stated that she asked the family planning officials to

15   remove the IUD, but was refused and given medicine to

16   address her infection, from which she eventually recovered.

17   While these circumstances are unfortunate, they do not

18   constitute the “aggravating circumstances” necessary for the

19   harm Liu suffered to rise to the level of persecution.     See

20   M-F-W- & L-G-, 24 I. & N. Dec. at 641-42 (providing that

21   “examples of routine acts implementing China’s family

22   planning policy that are lacking in harm sufficient to

23   constitute persecution include reinsertion of an IUD after

                                      8
 1   the removal of an IUD, fines for having removed the IUD that

 2   are not excessive, regularly required gynecological exams,

 3   and other routine fines and threats for disobeying the

 4   policy”).

 5       Because the agency reasonably concluded that Liu did

 6   not suffer past persecution, she is not entitled to a

 7   presumption of future persecution.     See 8 C.F.R.

 8   § 208.16(b)(1).     Furthermore, in her brief, Liu does not

 9   raise the issue of future persecution, and makes no argument

10   regarding the likelihood of persecution if she returns to

11   China.    Accordingly, we decline to address the issue.

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

13   (2d Cir. 2005); LNC Invs., Inc. v. Nat’l Westminster Bank,

14   N.J., 308 F.3d 169, 176 n.8 (2d Cir. 2002).     Because Liu

15   failed to establish past persecution, and fails to argue

16   that she would be persecuted if she were to return to China,

17   we conclude that the agency did not err in denying her

18   application for withholding of removal.     See 8 C.F.R.

19   § 1208.16(b).

20       For the foregoing reasons, the petition for review is

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

22   removal that the Court previously granted in this petition

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

                                     9
1   this petition is DISMISSED as moot.    Any pending request for

2   oral argument in this petition is DENIED in accordance with

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

4   Circuit Local Rule 34.1(b).

5                                 FOR THE COURT:
6                                 Catherine O’Hagan Wolfe, Clerk
7
8




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