         07-4080-ag
         Ni v. Holder
                                                                                        BIA
                                                                                 Opaciuch, IJ
                                                                               A 077 122 549
                                                                               A 073 037 960
                             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 16 th day of June, two thousand ten.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                PETER W. HALL,
10                    Circuit Judges.
11       _______________________________________
12
13       MEI LIAN NI, a.k.a. XIN CHEN and
14       CHANG YONG YANG,
15                Petitioners,
16
17                          v.                                  07-4080-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., 1 U.S. ATTORNEY
20       GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONERS:              Norman Kwai Wing Wong, New York, New
25                                     York.


                        1
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder, Jr., is
             automatically substituted for former Acting Attorney
             General Peter D. Keisler as respondent in this case.
1    FOR RESPONDENT:        Gregory G. Katsas, Acting Assistant
2                           Attorney General; John C.
3                           Cunningham, Senior Litigation
4                           Counsel; Luis E. Perez, Senior
5                           Litigation Counsel, Office of
6                           Immigration Litigation, Washington
7                           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       Petitioners Mei Lian Ni and Chang Yong Yang, natives

14   and citizens of the People’s Republic of China, seek review

15   of the September 14, 2007, order of the BIA affirming the

16   October 9, 2002, decision of Immigration Judge (“IJ”) John

17   Opaciuch denying their applications for asylum, withholding

18   of removal, and CAT relief.   In re Mei Lian Ni and Chang

19   Yong Yang, Nos. A 077 122 549 and A 073 037 960 (B.I.A.

20   Sept. 14, 2007), aff’g Nos. A 077 122 549 and A 073 037 960

21   (Immig. Ct. N.Y. City Oct. 9, 2002).   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 both

25   the IJ’s and the BIA’s decisions.   See Yan Chen v. Gonzales,

26   417 F.3d 268, 271 (2d Cir. 2005).   The applicable standards


                                   2
1    of review are well-established.     See 8 U.S.C.

2    § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

3    (2d Cir. 2009).

4        I.          Ni’s Falun Gong Claim

5        Substantial evidence supports the agency’s adverse

6    credibility determination with respect to Ni’s Falun Gong

7    claim.   In support of that determination, the IJ reasonably

8    found that the detention certificate bearing Ni’s father’s

9    name was issued before the authorities had allegedly

10   arrested him.     See Siewe v. Gonzales, 480 F.3d 160, 168-69

11   (2d Cir. 2007); see also Wensheng Yan v. Mukasey, 509 F.3d

12   63, 67 (2d Cir. 2007).     The IJ also reasonably found

13   implausible Ni’s claim that the authorities renewed her

14   resident ID card despite the fact that she was a wanted

15   fugitive.   See Siewe, 480 F.3d at 168-69.

16       Nor did the IJ err in relying on the record of Ni’s

17   airport interview to support his adverse credibility

18   determination.     See Ramsameachire v. Ashcroft, 357 F.3d 169,

19   179 (2d Cir. 2004).     As the IJ found, Ni’s statements at

20   that interview were inconsistent with her testimony and

21   amended asylum application.     Indeed, Ni did not mention that

22   she owned the bookstore or that the authorities were seeking



                                     3
1    to arrest her in connection with her sale of illegal Falun

2    Gong books.   Although Ni offered explanations for these

3    discrepancies, a reasonable fact-finder would not have been

4    compelled to credit them.    See Majidi v. Gonzales, 430 F.3d

5    77, 80-81 (2d Cir. 2005).

6        Ultimately, substantial evidence supported the agency’s

7    adverse credibility determination.    8 U.S.C.

8    § 1252(b)(4)(B).    Therefore, with respect to her Falun Gong

9    claim, because the only evidence that Ni was likely to be

10   persecuted or tortured depended upon her credibility, the

11   adverse credibility determination in this case necessarily

12   precludes success on her claims for withholding of removal

13   and CAT relief.    See Paul v. Gonzales, 444 F.3d 148, 156 (2d

14   Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

15   520, 523 (2d Cir. 2005).

16       II.       Family Planning Claim

17       Petitioners argue that the agency erred in finding that

18   they failed to establish their eligibility for relief based

19   on the birth of their second U.S. citizen child.    However,

20   we have previously reviewed the BIA’s consideration of

21   evidence similar to that which petitioners submitted and

22   have found no error in its conclusion that such evidence is

23   insufficient to establish a reasonable possibility of

                                    4
1    persecution.     See Jian Hui Shao v. Mukasey, 546 F.3d 138,

2    169-72 (2d Cir. 2008); see also Wei Guang Wang v. BIA, 437

3    F.3d 270, 275 (2d Cir. 2006).

4        III.        Illegal Departure

5        Finally, Petitioners argue generally that the IJ erred

6    in finding that they did not establish that they would be

7    tortured if returned to China due to their illegal

8    departure.     However, evidence that some individuals who left

9    China illegally are imprisoned, and that human rights

10   violations including torture occur in Chinese prisons, is

11   insufficient to establish a clear probability of torture for

12   a particular illegal emigrant.      See Mu Xiang Lin v. U.S.

13   Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005); Mu-

14   Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir. 2003).

15   Petitioners present no particularized evidence that they are

16   uniquely susceptible to torture compared to other illegal

17   emigrants.     Mu-Xing Wang, 320 F.3d at 143-44.

18       For the foregoing reasons, the petition for review is

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

20   removal that the Court previously granted in this petition

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

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



                                     5
1    oral argument in this petition is DENIED in accordance with

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

 3   Circuit Local Rule 34.1(b).
 4
 5
 6                                 FOR THE COURT:
 7                                 Catherine O’Hagan Wolfe, Clerk
 8
 9
10




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