         07-5275-ag
         Li v. Holder
                                                                                           BIA
                                                                                     Abrams, IJ
                                                                                   A097 485 231
                                 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 22 nd day of June, two thousand ten.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       _______________________________________
12
13       HONG MEI LI,
14                Petitioner,
15
16                          v.                                    07-5275-ag
17                                                                NAC
18       ERIC H. HOLDER, Jr., U.S. ATTORNEY
19       GENERAL, 1
20                  Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                  Gary J. Yerman, New York, New York.
24
25       FOR RESPONDENT:                  Gregory G. Katsas, Acting Assistant


                        1
                   Pursuant to Federal Rule of Appellate Procedure
             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                           Attorney General, Leslie McKay,
2                           Senior Litigation Counsel, Scott
3                           Rempell and Janice K. Redfern,
4                           Attorneys, Office of Immigration
5                           Litigation, Civil Division, United
6                           States Department of Justice,
7                           Washington, D.C.

1         UPON DUE CONSIDERATION of this petition for review of a

2    decision of the Board of Immigration Appeals (“BIA”), it is

3    hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4    review is DENIED.

5         Petitioner Hong Mei Li, a native and citizen of the

6    People’s Republic of China, seeks review of an October 31,

7    2007, order of the BIA, denying her motion to remand and

8    affirming the October 24, 2005, decision of Immigration

9    Judge (“IJ”) Steven R. Abrams, denying her application for

10   asylum, withholding of removal, and relief under the

11   Convention Against Torture (“CAT”).     In re Hong Mei Li, No.

12   A097 485 231 (B.I.A. Oct. 31, 2007), aff’g No. A097 485 231

13   (Immig. Ct. N.Y. City Oct. 24, 2005).     We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history of the case.

16   I.   Asylum and Withholding of Removal

17        Under the circumstances of this case, we review the

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


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

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

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

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

5        Substantial evidence supports the IJ’s adverse

6    credibility determination.   The IJ based that determination,

7    in part, on Li’s demeanor, finding that she “was at a loss”

8    when asked questions that deviated from her asylum

9    application.   We accord particular deference to such

10   assessments of an applicant’s demeanor.     Majidi v. Gonzales,

11   430 F.3d 77, 81 n.1 (2d Cir. 2005).   The IJ further noted

12   Li’s inconsistent testimony regarding the timing of her

13   receipt of a fine certificate and who paid the fine.     As the

14   IJ found, although Li testified that she received the

15   certificate at the hospital following her forced abortion,

16   her asylum application and her mother’s letter state that

17   she received it two days after her abortion.     Moreover,

18   although Li testified that her parents paid the fine, the

19   certificate indicates that Li paid the fine.     While minor

20   and isolated discrepancies may be insufficient to support an

21   adverse credibility determination, see Diallo v. INS, 232

22   F.3d 279, 288 (2d Cir. 2000), the multiple discrepancies



                                   3
1    here were not isolated or minor, and they relate to events

2    at the heart of Li’s claim.     The IJ also reasonably found it

3    implausible that Li was unable to state her address in China

4    because she lived there for thirteen years.     See Wensheng

5    Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007).

6    Furthermore, the IJ did not err in declining to credit the

7    explanations Li offered for these discrepancies.      See

8    Majidi, 430 F.3d at 80-81.

9           Accordingly, substantial evidence supports the agency’s

10   adverse credibility determination.     See 8 U.S.C.

11   § 1158(b)(1)(B)(iii).     Because the only evidence of a threat

12   to Li’s life or freedom depended upon her credibility, the

13   adverse credibility determination in this case necessarily

14   precluded success on her claim for asylum and withholding of

15   removal.     See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

16   2006).     Li does not challenge the BIA’s denial of her

17   application for CAT relief.

18   II.   Motion to Remand

19         On appeal to the BIA, Li claimed to fear sterilization in

20   China because she had four U.S. citizen children.      The BIA

21   construed that claim as a motion to remand, and denied it.        We

22   review the BIA’s denial of a motion to remand for abuse of



                                       4
1    discretion.   Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d

2    149, 157 (2d Cir. 2005).      A motion to remand that relies on

3    newly available evidence is held to the substantive

4    requirements of a motion to reopen.      Id. at 156.   The movant’s

5    failure to submit previously unavailable material evidence or

6    to establish a prima facie case for the underlying substantive

7    relief sought are proper grounds on which the BIA may deny

8    such a motion.   See INS v. Abudu, 485 U.S. 94, 104-05 (1988).

9        The BIA reasonably found that Li could have presented her

10   claim based on the birth of her children before the IJ.

11   Indeed, at the time of the merits hearing, China’s Population

12   and Family Planning Law had already been enacted and Li had

13   already given birth to four U.S. citizen children.       However,

14   Li did not claim before the IJ that the birth of her children

15   placed her in danger, arguing instead that she feared

16   returning to China because of her illegal departure.       Li

17   offers no support for her conclusory assertion that such

18   evidence was not available to her.      Li’s failure to make this

19   claim before the IJ was alone a proper basis to deny her

20   motion to remand.   See id.

21       To the extent Li argued that country conditions had

22   changed, the BIA did not abuse its discretion in refusing to



                                       5
1    remand on that basis.     Contrary to Li’s argument, a reasonable

2    fact-finder would not be compelled to conclude that the BIA

3    ignored any material evidence that she submitted.     See Jian

4    Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); see

5    also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337

6    n.17 (2d Cir. 2006).     Moreover, the BIA did not err in finding

7    that Li’s evidence did not indicate a material change in the

8    law or in the implementation of China’s family planning policy

9    because the evidence she submitted was the same or similar to

10   that which this Court addressed in Jian Hui Shao.

11   Accordingly, the BIA did not abuse its discretion in denying

12   Li’s motion to remand.     See Li Yong Cao, 421 F.3d at 156-57.

13       For the foregoing reasons, the petition for review is

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

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

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

17   is DISMISSED as moot. Any pending request for oral argument in

18   this petition is DENIED in accordance with Federal Rule of

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

20   34.1(b).

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




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