NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0461n.06 No. 12-4196 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

XI AOF EN L IU-CHEN, Petitioner,

v. ERI C H. HOL DER, J R. Attorney Gene ral Respondent. ) ) ) ) ) ) ) ) ) ON PETI TI ON F OR REVI EW FROM AN O RDER OF THE BO ARD OF I MMI GRATI ON APPEAL S

Be fore : ROGERS and KETHL EDGE, Circuit Judges; and B ORMAN, District J udg e. *

KETHL EDGE, Circuit J udg e. Xiaofe n L iu-Chen peti t i o n s for revie w of an order of the Boa rd of I mmigration Appea ls denying her ap p l i ca t i ons for asylum, withholding of remova l, and protec tion under the United N ations’ Convention Ag ainst Torture. We de ny the petition. I

. L iu-Chen, a native and citizen of China, enter ed the United States using a fake passport and visa in Dec ember 1997. I n Fe bruar y 2007, the Depa

rtment of Homeland Security issued her a Notice to Appea r, char g ing her with being remova ble under 8 U.S.C. § 1227(a) (1)( A). L iu-Chen conce ded

The Honor able Paul D. B orman, United States District Judge for the E astern D istrict of * Michig an, sitting by

desig nation.No. 12-4196

Liu-Chen v. Holder

remova bility , but applied for asylum, withholding o f re m o v al, and protec tion under the United Nations’ Convention Ag ainst Torture. An immigration judge (I J ) held a hearing on the m erits of L iu-Chen’s application. At that hear ing, L iu-C h en testified to the following fac ts. L iu-Chen was born on October 30, 1979 in Wenzhou City , China. She was her mother’s second child. Shortl y t h ereafte r, China adopted a policy that made it i l l ega l t o have more than one child. Thus, when L iu-Chen’s mother beca me preg nant with her third child in Fe bruar y 1981, she took L iu-Chen and went into hiding. L iu-Chen and her mother spent the next sever al months living in an outdoor utilit y shed. They rema ined there until L iu-Chen’s mother g ave bir th. I n J une 1983, L iu-Chen’s mother beca me pregnant with her fourth child. Chinese authorities discovere d the preg nancy , howeve r, an d fo rce d L iu-Chen’s mother to have an abortion. In September 1983, L iu-Chen’s mother beca me pregnant with her fifth child. L iu-Chen and her mother ag ain went into hiding until she g ave birth. When they returne d home in 1984, they discovere d that Chinese authorities had sear ched their house, brea king g lass and destroying furniture in the proce ss. L iu-Chen and her moth er we n t i n t o hiding a third time in Marc h 1985, when L iu-Chen’s mother beca me pregnant with her six th child. Aft er L i u-Chen’s mother g ave birth, they returne d home. When they

did so, Chinese authorities arr ested L iu-Chen’s mother a nd forc ibly

sterilized her. L iu-Chen also testified that she and her husband planned to have three children. Thus, if she

was re moved to China, she fe are d that she would also be f orcibly sterilized. After the hea ring , the I J denied L

ui-Chen’s application. The I J found that L iu-Chen’s fe ar of perse cution for violating China’s one-c hild policy was based “upon highly specu lative future -2-No. 12-4196

Liu-Chen v. Holder events[,] ” given that she and her husband had tried to have c hildren for almost nine y ear s without

succe ss. The I J there fore held that L iu-Chen had failed to establish a clea r probability of perse cution upon return to China. The Boa rd of I mmigration Appea ls aff irmed th e I J ’s finding s. The Boa rd also reje cted L iu-Chen’s argument (made for the first time on appea l) that she had suffe red past perse cution when she went into hiding with her mother. The Boa rd held that, althoug h “it must have been difficult for [L iu-Chen] to witness the harm suffe red by her mother,” those events did not “g ive[] rise to a claim of past perse cution[.] ” The Boa rd added that L iu-Chen “ha[d] not demonstrated that she persona lly suffe red any phy sical or psy cholog ical harm or mistreatment by Chinese family officia ls in the past.” This petition for revie w followed. I I

. Where, as here , the Boa

rd issues its own opinion, we revie w that opinion as the final ag ency deter mination. Dieng v. Holder , 698 F.3d 866, 871 (6th Cir. 2012). We revie w questions of law de

novo and fac tual finding s for substantial evidenc e, reve rsing only if the evidenc e compels a contra ry conclusion. See id. The Boa rd fou n d t h at L iu-Chen’s asylum application was untimely , see 8 U.S.C. § 1158(a )( 2 )(B), and that L iu-Chen had not shown “cha ng ed circ umstances” or “extraordinar y circ umstances rela

ting to the delay in filing an application” to excuse the l at e fi l ing, see id. § 1158(a) (2)( D). L iu-Chen does not cha lleng e this determination on appe al. To preva il on her withholding claim, L iu-Chen must demonstrate a “cle ar probability ” that she would suffe r perse cution in China on the b as i s t h at s he violated the one-c hild policy

. See 8 -3-No. 12-4196

Liu-Chen v. Holder U.S.C. § 1231(b)( 3); Camara v. Holder , 705 F.3d 21 9 , 2 2 5 (6 th Cir. 2013). She can car ry this burden in two way s: by proving past perse cution, which cre ates a rebuttable presumption of future perse cution, or by proving “that it is more l i k el y than not” that she will suffe r perse cution upon return to China. 8 C.F.R. § 1208.16(b)

. L iu-Chen first argues that she suffe red past perse cution when Chinese authorities attempted to enfor ce the one-c hild policy ag ainst her mother. This experience “uproote d [L iu-Chen] from her home and community [,] ” and “for ced [ her] into hiding and rec luse for lo n g periods of time, often in woef ully unsafe conditions, only to return to find her home destroy ed.” Thus, L iu-Chen say s, she is entitled to a rebuttable presumption of future perse cution. Bu t i t was L iu-Chen’s mother who suffe red perse cution when China enfor ced its one-c hild policy , not L iu-Chen. Persec ution is define d

as “the infliction of harm or s u ff ering by the g overnme nt

. . . to overc ome a characte ristic of the victim .” Bonilla-Morales v. Holde r , 607 F.3d 1132, 1136 ( 6th Cir. 2010) (empha sis added). A nd here , there is no evidenc e that China inflicted an y harm or suffe ring on L iu-Chen beca use of any charac teristic that she possessed. L iu-Chen has never violated (or been perc eived as viola t i n g) China’s one-c hild policy ; thus, Chi na ca nnot persec ute her

for doingso. Moreove r, there is no evidenc e that China meant to punish L iu-Chen because her mother violated the one-c hild policy

. To the contra ry , afte r her mo t her was sterilized, L iu-Chen lived in China for 12 y ear s without incident. Thus, L iu-Chen did not suffe r perse cution when China enfor ced its one-child policy

ag ainst her mother

. See J iang v. Gonzales , 500 F.3d 137, 142 ( 2d Cir. 2007). L i u -C h en also argues that she is more likely than not to suffe r perse cution upon retur n t o China beca

use s h e plans to have three children. But the evidenc e does not compel a finding that -4-No. 12-4196

Liu-Chen v. Holder L iu-Chen will suffer

future pe rsec ution. L iu-Chen curr ently has no children, even though she and her husband have been trying to have a child for nine y ear s. And L iu-Chen’s husband testified that, if she is remove d to China, he does not plan on joining her. Taken toge ther, these fac ts make it unlikely that L iu-Chen will have more than one c hild upon return to China. L i u-Chen has failed to prove either past perse cution or a likelihood of future perse cution. Thus, she is not entitled to withholdi ng of re moval. Finally , the Boa

rd found that L iu-Chen had not established that she would likely be tortured by , or with the acquie scenc e of, the Chinese g overnme nt. L iu-Chen raises no substantive argument challeng ing that deter

mination. Her claim fo r p ro tection under the United Nations’ Convention Ag ainst Torture is the ref

ore waived. See Al-Najar v

. Mukase y , 515 F.3d 708, 717 (6th Cir. 2008)

. The pe tition for reviewis denied.

-5-