         07-4666-ag
         Liu v. Holder
                                                                                        BIA
                                                                           Holmes-Simmons, IJ
                                                                                A096 336 584
                              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 New
 4       York, on the 20 th day of April, two thousand ten.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                DEBRA ANN LIVINGSTON,
10                        Circuit Judges.
11       _______________________________________
12
13       FENG YING LIU,
14                Petitioner,
15
16                           v.                                 07-4666-ag
17                                                              NAC
18       UNITED STATES DEPARTMENT OF JUSTICE,
19       ERIC H. HOLDER, JR., 1 UNITED STATES
20       ATTORNEY GENERAL,
21                Respondents.
22       _______________________________________
23


                   Pursuant to Federal Rule of Appellate Procedure
                         1

             43(c)(2), Attorney General Eric. H. Holder, Jr., is
             automatically substituted for former Attorney General
             Michael B. Mukasey as respondent in this case.
1    FOR PETITIONER:                 Yee Ling Poon, New York, New York.
2    FOR RESPONDENTS:                Gregory G. Katsas, Acting Assistant
3                                    Attorney General; Terri J. Scadron,
4                                    Assistant Director, Office of
5                                    Immigration Litigation, United
6                                    States Department of Justice,
7                                    Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

10   Board of Immigration Appeals (“BIA”) decision, it is hereby

11   ORDERED, ADJUDGED, AND DECREED, that the petition for review

12   is DENIED.

13       Feng     Ying   Liu,    a    native       and   citizen      of   the   People’s

14   Republic of China, seeks review of a September 25, 2007, order

15   of the BIA denying her motion to remand and affirming the

16   September    26,    2005,   decision          of    Immigration       Judge   (“IJ”)

17   Theresa    Holmes-Simmons,           which    denied       her   application     for

18   asylum,     withholding         of    removal,       and     relief     under    the

19   Convention Against Torture (“CAT”).                  In re Feng Ying Liu, No.

20   A096 336 584 (B.I.A. Sept. 25, 2007), aff’g No. A096 336 584

21   (Immig. Ct. N.Y. City Sept. 26, 2005).                 We assume the parties’

22   familiarity with the underlying facts and procedural history

23   in this case.

24       Under the circumstances of this case, we review the IJ’s

25   decision as modified and supplemented by the BIA’s decision.

26   See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

27   (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

                                               2
1    Cir. 2005).            The applicable standards of review are well-

2    established.           See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia

3    Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

4    I.    Asylum, Withholding of Removal, and CAT Relief

5          We        conclude      that    the    agency’s      adverse       credibility

6    determination was supported by substantial evidence.                             See Xian

7    Tuan Ye v. Dep’t of Homeland Security, 446 F.3d 289, 294 (2d

8    Cir. 2006) .          As the IJ found, although Liu stated at one point

9    that she was kicked by police, she failed to make any such

10   assertion         in     her    asylum       application         or     upon      direct

11   examination.                Additionally,         the    BIA     reasonably        found

12   inconsistent Liu’s testimony regarding whether her cousin was

13   still detained.              The IJ also reasonably found implausible

14   Liu’s testimony that her cousin would have told the police

15   that he had given his Falun Gong books to her for safekeeping.

16   See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007) ;

17   Siewe      v.    Gonzales,      480   F.3d       160,   168-69    (2d   Cir.      2007).

18   Finally, given Liu’s already questionable testimony, the IJ

19   did   not       err    in    declining      to    accord   weight       to   a    letter

20   purportedly from Liu’s father, or in finding that her failure

21   to provide corroboration further undermined her credibility.

22   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341



                                                  3
1    (2d Cir. 2006).       Such were adequate bases for finding Liu not

2    credible.     See Xian Tuan Ye, 446 F.3d at 294.                          To the extent

3    that Liu offered explanations for the discrepancies the IJ

4    identified, moreover, the IJ was not compelled to credit them.

5    See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

6           We do find error in one respect.                     We cannot agree with

7    the IJ’s finding that it was implausible that Liu would not

8    know whether a warrant had been issued for her arrest.                                 This

9    implausibility       finding    was       not   based       on     common      sense    and

10   ordinary experience, Siewe, 480 F.3d at 168-69, but required

11   a knowledge of Chinese government practice that the IJ could

12   not claim to have, see Cao He Lin v. U.S. Dep’t of Justice,

13   428 F.3d 391, 405 (2d Cir. 2005).                In that respect we are left

14   with   a   “firm   conviction        of    error.”          See     Wensheng      Yan    v.

15   Mukasey,    509    F.3d   at   67.     Despite        this       erroneous      finding,

16   however,     we    conclude     that       remand          would     be     futile,      as

17   substantial       evidence     supports         the    remainder          of   the     IJ’s

18   findings    which,    together,        provide        an    ample     basis      for    the

19   adverse credibility determination.                    See Xiao Ji Chen, 471 F.3d

20   at 339 (deeming remand futile where the remanding court can

21   “confidently       predict”     that      the    IJ     would       reach      the     same

22   decision absent the errors that were made).                         Thus, the agency



                                                4
1    properly     denied     Liu’s   asylum      and   withholding   of   removal

2    claims.

3    II.   Motion to Remand

4          We further find that the BIA did not abuse its discretion

5    in denying Liu’s motion to remand, because she failed to

6    demonstrate her prima facie eligibility for relief.                  See Li

7    Yong Cao v. U.S. Dep't of Justice, 421 F.3d 149, 156 (2d Cir.

8    2005); Matter of Coelho, 20 I. & N. Dec. 464, 471-72 (BIA

9    1992).     The BIA reasonably determined that Liu’s claim that

10   she feared being forcibly inserted with an IUD, without more,

11   failed to establish her eligibility.                 See Xia Fan Huang v.

12   Holder, 591 F.3d 124, 129-30 (2d Cir. 2010) (according Chevron

13   deference to the BIA’s determination in Matter of M-F-W & L-G,

14   24 I. & N. Dec. 633 (BIA 2008) ).                   Additionally, the BIA

15   reasonably      determined       that       Liu’s    argument    that    she

16   demonstrated her prima facie eligibility based on the birth of

17   her   U.S.   citizen     daughter     is    foreclosed   by   this   Court’s

18   decision in Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir.

19   2008) .      Finally,    the    BIA   reasonably      found   impermissibly

20   speculative Liu’s claim that she had a well-founded fear of

21   persecution based on her intention to have a second child.

22   See Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir.

23   2005) (holding that, absent solid support in the record for
                                             5
1    the   petitioner’s   assertion   that   he   would   be   subjected   to

2    forced sterilization, his fear was “speculative at best”).

3          For the foregoing reasons, the petition for review is

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

5    that the Court previously granted in this petition is VACATED,

6    and any pending motion for a stay of removal in this petition

7    is DISMISSED as moot.     Any pending request for oral argument

8    in this petition is DENIED in accordance with Federal Rule of

9    Appellate Procedure 34(a)(2), and Second Circuit Local Rule

10   34.1(b).

11                                    FOR THE COURT:
12                                    Catherine O’Hagan Wolfe, Clerk
13
14




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