         10-3535-ag
         Liu v. Holder
                                                                                        BIA
                                                                           Holmes-Simmons, IJ
                                                                                A099 592 228
                          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 19th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                ROBERT A. KATZMANN,
 9                DEBRA ANN LIVINGSTON,
10                    Circuit Judges.
11       _____________________________________
12
13       BAO JUN LIU
14                Petitioner,
15
16                       v.                                     10-3535-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Joshua Bardavid, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Shelley R. Goad, Assistant
27                                     Director; Jennifer P. Levings,
28                                     Senior Litigation Counsel, 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        Petitioner Bao Jun Liu, a native and citizen of the

 6   People’s Republic of China, seeks review of an August 6,

 7   2010, order of the BIA, affirming the September 22, 2008,

 8   decision of Immigration Judge (“IJ”) Theresa Holmes-Simmons,

 9   which denied his application for asylum, withholding of

10   removal, and relief under the Convention Against Torture

11   (“CAT”), and denying his motion to remand and reopen.     In re

12   Bao Jun Liu, No. A099 592 228 (B.I.A. Aug. 6, 2010), aff’g

13   No. A099 592 228 (Immig. Ct. N.Y. City Sept. 22, 2008).       We

14   assume the parties’ familiarity with the underlying facts

15   and procedural history in this case.

16   I.   Asylum, Withholding of Removal, and CAT

17        Under the circumstances of this case, we have reviewed

18   the IJ’s decision as modified by the BIA decision.    See Xue

19   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

20   Cir. 2005).    The applicable standards of review are well-

21   established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

22   Holder, 562 F.3d 510, 513 (2d Cir. 2009).



                                    2
 1       In pretermitting Liu’s asylum application as untimely,

 2   the agency found that although the July 2004 death of his

 3   attorney was an “extraordinary circumstance,” his asylum

 4   application was nonetheless untimely because he waited to

 5   file until January 2006.    Liu argues that mistranslations

 6   prevented him from providing testimony that he acted with

 7   due diligence in pursuing his asylum application after the

 8   death of his prior counsel.    Because this argument

 9   potentially implicates a due process violation, see Augustin

10   v. Sava, 735 F.2d 32, 38 (2d Cir. 1984), we retain

11   jurisdiction to review the issue, see Xiao Ji Chen v. U.S.

12   Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).

13   Nevertheless, the record does not support Liu’s contention

14   that he was prevented from explaining why he did not apply

15   for asylum during the seventeen months following his

16   attorney’s death.   Rather, the record shows that the

17   translator asked Liu to “repeat because of the strong

18   accent,” which Liu did.    Moreover, the record is clear that

19   the BIA understood Liu’s explanation for his delay in filing

20   – that he thought if his first attorney had filed an

21   application re-filing would cause a problem by creating two

22   alien registration numbers – but found this explanation


                                    3
 1   insufficient.     Accordingly, the agency’s pretermission of

 2   Liu’s asylum application was not flawed by any due process

 3   deficiency.     See Burger v. Gonzales, 498 F.3d 131, 134 (2d

 4   Cir. 2007).

 5       As to his remaining claims, because Liu does not

 6   challenge the BIA’s finding that he did not demonstrate past

 7   persecution, he is not entitled to the presumption of a

 8   well-founded fear of persecution.     See 8 C.F.R.

 9   § 1208.16(b)(1)(ii), (2).     Accordingly, we address only

10   whether Liu independently established that it was more

11   likely than not that he would be persecuted, and conclude

12   that the BIA reasonably found that, even accepting the

13   veracity of his description of past events, Liu did not

14   demonstrate that he was more likely than not to face

15   persecution in China.     Contrary to Liu’s argument that the

16   BIA ignored his evidence, the BIA noted that letters from

17   Liu’s wife and her grandfather showed that Liu’s wife had

18   relocated within China and did not mention any encounters

19   with the family planning authorities after the abortion in

20   April 2004.     See Melgar de Torres v. Reno, 191 F.3d 307, 313

21   (2d Cir. 1999).     Although Liu’s wife asserted that his

22   daughter would soon reach school-age and would not be able


                                     4
 1   to attend school, the record does not compel the conclusion

 2   that the BIA ignored this aspect of the evidence.   See Xiao

 3   Ji Chen, 471 F.3d at 338 n.17.

 4       Liu also argues that background evidence in the record

 5   supports his fear of sterilization as a punishment for

 6   violating the family planning law, pointing to a Statement

 7   of Congressman Christopher H. Smith, dated June 1998, that

 8   “sterilization is sometimes employed . . . as a punishment.”

 9   Nevertheless, the BIA did not err in concluding that this

10   generalized evidence was insufficient to establish that Liu

11   was more likely than not to face persecution if returned to

12   China, particularly in light of more current evidence in the

13   record that the central government in China has prohibited

14   forced sterilizations.   See Jian Hui Shao v. Mukasey, 546

15   F.3d 138, 149, 171-72 (2d Cir. 2008); Paul v. Gonzales, 444

16   F.3d 148, 155-56 (2d Cir. 2006).   Similarly, although Liu

17   argues that he will face economic persecution in China, the

18   BIA reasonably found that he did not show that he was more

19   likely than not to face economic harm rising to the level of

20   persecution, especially in light of his admission that he

21   was unsure whether he would be fined after his long absence

22   from China, and his failure to present evidence of his

23   personal finances.   See Guan Shan Liao v. U.S. Dep’t of

                                   5
 1   Justice, 293 F.3d 61, 70 (2d Cir. 2002).     For the same

 2   reasons, despite Liu’s assertions that he is likely to be

 3   tortured by sterilization in China, the BIA did not err in

 4   denying CAT relief.    See Xue Hong Yang, 426 F.3d at 523;

 5   Pierre v. Gonzales, 502 F.3d 109, 118-19 (2d Cir. 2007).

 6   II. Motion to Reopen

 7       We have reviewed the BIA’s denial of Jiang’s motion to

 8   remand and reopen for abuse of discretion.     See Li Yong Cao

 9   v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005).

10   Here, the BIA did not abuse its discretion in denying Liu’s

11   motion to reopen because, even assuming that the translation

12   errors he alleges were present, he demonstrated no prejudice

13   as a result.   See Burger, 498 F.3d at 134; Guo Qi Wang v.

14   Holder, 583 F.3d 86, 89 n.1 (2d Cir. 2009).

15       Liu argues that the mistakes and incompetence of the

16   translator infringed on his right to due process because he

17   was prevented from expanding on his testimony.     Although the

18   record reflects that the translator asked Liu to repeat

19   himself on a number of   occasions and mentioned that Liu had

20   a “strong accent,” the interpreter then translated Liu’s

21   repeated testimony, and there is no indication that Liu was

22   unable to express himself adequately through the

23   interpreter.   In addition, Liu was represented by counsel
                                    6
 1   throughout his proceedings, yet his counsel did not raise

 2   any objection to the sufficiency of the hearing or suggest

 3   that he would like to elicit additional testimony.     Thus,

 4   Liu’s due process claim is without merit.    See Burger, 498

 5   F.3d at 134; see also Hoodho v. Holder, 558 F.3d 184, 192

 6   (2d Cir. 2009) (“[A] party who voluntarily chose an attorney

 7   as his representative in an action cannot avoid the

 8   consequences of the acts or omissions of this freely

 9   selected agent.” (internal punctuation omitted)).

10       Liu also argues that he was prejudiced by various

11   alleged mistranslations, pointing to differences between the

12   translation of the hearing in the record and that provided

13   by his independent translator.    Review of the differences

14   between the translations, however, reveals that the alleged

15   mistakes were inconsequential, as his statements were

16   understood by the agency and many of the alleged errors did

17   not affect the meaning of his testimony.    Because the

18   alleged mistranslations did not result in any significant

19   loss of meaning, the BIA reasonably concluded that he was

20   not prejudiced and did not abuse its discretion in denying

21   remand.   See Guo Qi Wang, 583 F.3d at 89 n.1; Ke Zhen Zhao

22   v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001).

23

                                   7
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12




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