Su Ying Li v. Holder , 563 F. App'x 870 ( 2014 )

12-4232
Li v. Holder
BIA
A077 569 382
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 5th day of May, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
SU YING LI,
Petitioner,
v. 12-4232
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: WaiSim M. Cheung, Tsoi and
Associates, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Stephen J. Flynn, Assistant
Director; Lynda A. Do, Attorney,
Civil Division, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DISMISSED in part and DENIED in part.
Su Ying Li, a native and citizen of the People’s
Republic of China, seeks review of an October 12, 2011,
order of the BIA affirming the February 23, 2010, decision
of Immigration Judge (“IJ”) Helen Sichel, pretermitting her
application for asylum and denying her application for
withholding of removal and relief under the Convention
Against Torture (“CAT”), see Su Ying Li, No. A077 569 382
(B.I.A. Oct. 12, 2012), aff’g No. No. A077 569 382 Immig.
Ct. N.Y. City Feb. 23, 2010), and the BIA’s September 27,
2012 order denying her motion to remand or reopen
proceedings, see Su Ying Li, No. A077 569 382 (B.I.A. Sept.
27, 2012). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
First, we lack jurisdiction to review the agency’s
pretermission of an asylum application as untimely, unless a
petitioner raises constitutional claims or questions of law.
See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). To the extent Li
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argues that the IJ erred in finding that the 2003 birth of
her second child made her eligible for asylum, thus
rendering her 2007 application untimely, she challenges the
IJ’s fact-finding, which we lack jurisdiction to review. 8
U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). To the extent Li
argues that her 2007 asylum application was timely because
she filed a timely application in 1999 – which she later
withdrew, after admitting that the allegations contained
therein were false – even assuming that she raises a
question of law, we can find no support for the proposition
that a withdrawn, fabricated asylum application can excuse a
later, untimely application filed after entry of a removal
order.
As to withholding of removal and CAT relief, under the
circumstances of this case, we have reviewed the IJ’s
decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009).
We conclude that substantial evidence supports the
agency’s adverse credibility determination. Under the
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doctrine of falsus in uno, falsus in omnibus, the agency was
permitted to allow Li’s earlier fabricated asylum
application to cast doubt on her credibility. See Siewe v.
Gonzales, 480 F.3d 160, 170 (2d Cir. 2007). Additionally,
the agency reasonably concluded that Li’s testimony that her
mother volunteered information about Li’s children to the
family-planning authorities was implausible given Li’s
knowledge of the family-planning policy and belief that she
would be subject to sterilization should the authorities
learn that she had more than one child. See Wensheng Yan v.
Mukasey, 509 F.3d 63, 67-68 (2d Cir. 2007). Finally, the
agency was not required to credit Li’s assertion that she
knew of a woman who was forcibly sterilized, as she did not
corroborate the assertion and conceded that she had heard
the story second hand. Accordingly, viewing the totality of
the circumstances, the agency did not err in finding that Li
was not credible. Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167
(2d Cir. 2008).
Moreover, we see no error in the agency’s alternative
finding that even assuming the credibility of Li’s
testimony, Li did not provide objective evidence that she
would face persecution on the basis of her violation of the
family-planning policy. As the agency pointed out, Li
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provided affidavits from women who claimed to have undergone
forced sterilization, but the affidavits contained no
indication that the two women were similarly situated to Li.
See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.
2005). Further, a document obtained by Li’s mother from the
family-planning office was unauthenticated and was obtained
for the purposes of the immigration proceedings. See Matter
of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214 & n.5 (BIA
2010), overruled in part on other grounds by Hui Lin Huang
v. Holder, 677 F.3d 130 (2d Cir. 2012). Additionally,
although Li documented the 2004 Fujian province family-
planning policy, her allegations regarding the enforcement
of the policy were contradicted by later State Department
reports indicating that enforcement is “lax” in Fujian.
Turning to the BIA’s denial of reopening or remand on
the ground that Li did not show her prima facie eligibility
for asylum based on her conversion to Christianity, we find
no abuse of discretion. See Ali v. Gonzales, 448 F.3d 515,
517 (2d Cir. 2006). A movant’s failure to establish prima
facie eligibility for relief is valid grounds to deny a
motion to reopen, see INS v. Abudu, 485 U.S. 94, 104-05
(1988), and contrary to Li’s position, the BIA applied the
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correct standard, explicitly referencing the requirement of
a prima facie showing.
Nor did the BIA abuse its discretion in finding that Li
failed to establish her prima facie eligibility for relief
from removal. Because Li converted to Christianity in the
United States and did not suffer past persecution on the
basis of her religion, she was required to establish a well-
founded fear of future persecution by showing either that
she would be individually targeted or that there was a
pattern or practice of persecution of similarly situated
people. See 8 U.S.C. § 1101(a)(42); 8 C.F.R.
§§ 1208.13(b)(2)(iii), 1208.16(b)(3). However, Li presented
no evidence that authorities in Fujian province are aware of
her conversion, or that there is a policy of persecuting
believers in Fujian, as the evidence of those harmed related
mainly to church leaders. See Hongsheng Leng v. Mukasey,
528 F.3d 135, 143 (2d Cir. 2008) (to demonstrate would be
individually targeted, “an alien must make some showing that
authorities in [her] country of nationality are either aware
of [her] activities or likely to become aware of [her]
activities”); 8 C.F.R. §§ 1208.13(b)(2)(iii),
1208.16(b)(2)(ii) (requiring applicant claiming a pattern or
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practice of persecution to establish that she is similarly
situated to individuals in the group).
For the foregoing reasons, the petition for review is
DISMISSED in part as to the pretermission of asylum and
DENIED in remaining part.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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