NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0031n.06 No. 12-3344 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

L I FAN G L I U; YONG Q I N L I U, Petitioners,

v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ) ON PETI TI ON F OR REVI EW FROM A FI NAL ORDER OF TH E BO ARD OF I MMI GRATI ON APPEAL S

Be fore : MERRI TT, MARTI N, and GI L MAN, Circuit J udg es.

PER CURI AM. L i Fa

ng L iu (L i) and her husband, Yong Qin L iu (Yong ) (collec tively “the L ius”), are n at i ves and citizens of China petitioning for revie w of an order by the Boa rd of I mmigra tion Appea ls (B oard) aff irming a decision by an I mmigra tion J udg e (I J ) d en y i n g t h eir applications for asy lum, withholding of remova l, and relief under the Convention Ag ainst Torture

. Wit h the assis tance of sm ug g lers, Yong entere d t h e Un i ted S tates i n November 1997, and L i enter ed in A

pril 2000. L i f

iled her application for asy lum on April 21, 2006, naming Yong as a deriva tive benef

iciary , based on a fea

r of perse cution beca

use they had three children at the time they filed their application, subjecting them to sterilization if they returned to China, acc ording to the country ’s family -planning policies. L i and her husband also fea red that, in addition to sterilization, they would be forc ed to pay exorbitant fines and fee s, and that if they did not pay t h e fines, they would be deprive d of civil se rvice s in China, including a g overnme nt-provided education f or theirNo. 12-3344 - 2 - ch i l d ren. Yong later withdrew his reque st for asy lum, and filed a separ ate applicati o n fo r withholding of r emoval and r elief unde r the Convention Ag ainst Torture. The g overnme nt beg an remova l proce eding s against the L ius who subsequently admitted

remova bility

. An I J conducte d a joint hear ing in 2008 and deter mined that L i’s asy lum application

was untimely beca

use it was not filed until 2006, approximately six y ear s afte r s he arr ived in the United States. The I J deter mined that, even if the birth of L i’s second child in 2001, the first having been born in C h i n a i n 1 9 9 6 , was considere d a chang ed circ umstance that could toll the one-y ear statutory period for filing an asy lum application, L i had not filed within a rea sonable period afte r this chang e, citing 8 C.F.R. § 1208.4(a) (4)( ii). The I J then deter

mined that L i had not shown that she was subjected to past perse cution, or that she had a well-founde d fea r of perse cution should she be remove d to China. The I J stated that the family -planning policies reg arding forc ed sterili z at i o n h ad chang ed in Fujian, the L ius’ home province . The I J also found that, eve n if L i a nd Yong wer e cha

rg ed a f ee to r eg ister their c hildren for educa tional benef

its, the fee would not amount to econ o m i c p er s ecution g iven their appar ent financ ial circ umstances. Moreove r, the L ius had not demonstrated any intent to have another child afte r moving to China. The I J conclude d that, as a result, L i and Yong had failed to meet their burden f or either asy lum or withholding of r emoval. The Boa rd dismiss ed the L ius’ appea l, ag ree ing with the I J that L i’s asy lum application was not timely , and that L i ha d failed to f ile her application within a rea sonable time af

ter he r cha

ng ed circ umstances, specifica lly the bi rth of her second chil d in 2001. The Boar d also deter mined that L i and Yong had failed to establish past perse cution, or a well-founde d fea r of perse cution, rely ing

on 2007 and 2 0 0 8 country repor ts showing that Fujian Province no longe r prac ticed or supported forc ed sterilization, particula rly if children had been born abroa d. I n addition, the Boa rd noted that any fines or f ees tha t the L ius would be requir ed to pay to reg ister their c hildren would not reduc eNo. 12-3344 - 3 - them to an impoverished exis tence that would equate to economic pers ec u t i o n . The Boa rd then aff irmed the de nial of the L ius’ reque sts for re lief. L i arg ues that she was cre dibl e, that the one-y ear period for filing her asy lum application should have been measure d from the time her third child was born in 2005 , an d that she had established a well-founde d fear of future perse cution as a member of a g roup who would be subjected to for ced ste riliz ation upon her return. L i also arg ues t hat, based on the same f acts a nd circ umstances, she met her burden for withholding of remova l and for relief under the Convention Ag ainst Torture. L i and Yong fail to prese nt any arg ument on appea l reg arding their claim of past perse cution in China. There fore , they have waived t he opportunity for us to revie w that claim. See Patel v. Gonzales , 470 F.3d 216, 219 ( 6th Cir. 2006). The L ius arg

ue that we must acc ept their testimony as cre dible beca use the I J failed to make

an expli cit adver se-c redibility deter mination. Howeve r, their cre dibilit y is not an issue beca use the Boa rd ac cepte d their testimony as cr edible in dec iding their case . “Where the [Board] revie ws the immigra tion judge ’s decision and issues a separ ate opinion, rathe r than summarily aff

irming the immigra tion judge ’s decision, we revie w the [Board’ s] decision

as the final ag ency deter

mination.” Shaya v. Holder , 586 F.3d 401, 405 (6th Cir. 2009) (quotation marks and citation omitted). We wi l l n o t reve rse the Boa rd’s finding s unless a “re asonable adjudicator would be compelled to conclude to the contra ry .” 8 U.S.C. § 1252(b)( 4); Karimijanaki

v. Holder , 579 F.3d 710, 721 (6th Cir. 2009). Moreove r, we will uphold the Boa rd’s finding s as long

as they are “supported by rea sonable, substantial, a nd probative evidenc e on the rec ord considere d

as a whole.” Y

u v. Ashcroft , 364 F.3d 700, 702 (6th Cir. 2004) (quoting INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992)). An applicatio n fo r as y lum filed afte r one y ear from the date of entry is untimely

. See 8 U.S.C. § 1158(a)(2) (B ). Unde r sec tion 1158(a)( 3), we are prec luded from revie wing the questi onNo. 12-3344 - 4 - of whe ther a

n asy lum application has bee n timely filed within the one-y ear limit

. See CastellanoChacon v. INS , 341 F.3d 533, 544 (6th Cir. 2003). J urisdiction does not lie when the appea l “see ks revie w of discretionar

y or fac tual questions.” Almuhtaseb v. Gonzales , 453 F.3d 743, 748 (6th Cir. 2006). The questions L i prese nts reg arding whether her delay was rea sonable, including the question of whether she was awa

re of any family -planning policy violation a fter her second child was born,

are fac tual in nature

. Thus, we lack jurisdiction to consider them. Khozhaynova v. Holder , 641 F.3d 187, 191 (6th Cir. 2011). Howeve r, we have jur isdiction to consider the L ius’ claims of withholding of remova l and relief under the Convention Ag ainst Torture

. To preva il on a reque st to withhold remova l, an alien must show that there is a clea r probability that the alien would be subject to perse cution if he or she returne d to the country

in question. Pablo-Sanche z v. Holder , 600 F.3d 592, 594 ( 6th Cir. 2010)

. The Attorney Gene ral may not remove an alien to a country if the Attorney Gene ral decide s that the alien’s life or freed o m would be threa tened in that country beca use of the alien’s rac e, relig ion, nationality , membership in a particula r social g roup, or political opinion. 8 U.S.C. § 1231(b)( 3)(A) ; Vasha v. Gonzales , 410 F.3d 8 6 3 , 8 75 (6th Cir. 2005). I n order to establish entitlement to relief under the Convention Ag ainst Tort u re , an alien must prove that it is more likely than not that the alien will be tortured with the consent or acquie scenc e of public officia ls if he or she returns to the country in question. See 8 C.F.R. § 208.16(c) (2); Khozhaynova , 641 F.3d a t 197. The Boa rd’s decision i s supported by repor ts from the United States Depa rtment of State showing that the policy reg arding the forc ed steril i z ati on in China has chang ed over the last five y ear s. The L ius admit that these more rec ent repor ts do not m en t i o n any specific case s of sterilization in Fujian Province, but arg ue, never theless, that this coer cive policy still exis ts throug hout the country

. We have considere d simil ar claims and conclude d that, considering all the information on family planning in Fu jian, including the 2007 and 2008 country repor ts, a rational adjudicator could find that the province is lax in enfor cing its formal family -planning policies, andNo. 12-3344 - 5 - that “the probability of forc ed sterilization for any Chinese national returning to Fujian is low.” Xue Y ing Lin v. Gonzales , 203 F. App’x 704, 708 (6th Cir. 2006). The fac t that all but one of the L ius’ four children wer e born in the United States “fur ther decr ease s the likelihood of forc ed sterilization upon return.” Id .; see also Fang Huang v . Mukase y , 523 F.3d 640, 652- 53 (6th Cir. 2008). The Boa rd proper ly deter

mined, bas ed on the L ius’ descr iption of their financ ial circ umstances, and the lack o f any evidenc e to the contra ry , any fines and fee s imposed afte r reg istering their children would not equate to economic perse cution. See Daneshv ar v. Ashcroft , 355 F.3d 615, 624 n.9 (6th Cir. 2 0 0 4 )

. Fur ther, the L ius have never rec eived any persona l threa ts or information direc ting them to underg o forc ed sterilization if they wer e to return with their children, and they cannot rely on mere specula tion or asser

tions of possible perse cution to support their claim. The Boa rd proper ly upheld the I J ’s denial of withholding of remova l beca use the L ius failed to meet their b u rden of showing a clea r probability that they would be subjected to perse cution if

remove d to China with their children. Moreove r, based on this same evidenc e, they have failed to meet their burden for relief under the Convention A g ainst Torture

. See Khozhaynova , 641 F.3d at 197. The pe tition for reviewis denied.