2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-3-2009

Liu v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3047

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"Liu v. Atty Gen USA" (2009). 2009 Decisions. Paper 157.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-3047

___________

 YAN LIU,

Petitioner

vs.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the 

Board of Immigration Appeals 

Immigration Judge: Honorable Henry S. Dogin

(Agency No. A98-560-869)

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 27, 2009

Before: Chief Judge SCIRICA, SMITH and WEIS, Circuit Judges

(Opinion filed: December 3, 2009) 

___________

OPINION

___________

PER CURIAM.

Petitioner Yan Liu is a native and citizen of China who entered the United

States in March 2005. Liu was served with a Notice to Appear charging her with being

subject to removal pursuant to Immigration and Nationality Act § 212(a)(7)(A)(I).
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In January 2006, Liu applied for asylum, withholding of removal, and relief

under the Convention Against Torture (CAT). In support of her application, Liu alleged

that she left China because two men attempted to rape her and took pictures of her

without her top on. Liu’s father was apparently able to intervene in the attack, but was

then assaulted himself for a period of fifteen minutes. Liu further alleged that when she

reported the attack to the police, they did not investigate her case. She contends that she

heard that one of the assailants had a relative in the police department. She contends that

after the attack, her attackers sent her a threatening letter. They also approached her on a

bus and threatened her again. Liu testified that they posted naked pictures of her at her

school. Approximately ten months after the assault, Liu departed China for the United

States. The Immigration Judge (“IJ”) denied Liu’s applications for relief,

concluding that she did not qualify for asylum because she was the victim of an attack by

criminals and had not been targeted on account of a protected ground. The IJ reasoned

that it was “expanding the asylum law a little too far” to include every woman who had

been the victim of an attempted rape or humiliating photographs by “criminals.” (A.R. at

52.) The IJ stated that he did not find Liu’s attempt to qualify for asylum on the ground

that one of her attackers had “some connection” to the police “persuasive.” (Id.) 

Specifically, the IJ found that her testimony was inconsistent concerning when she knew

that the assailant “Ah Hu” was connected to the police. Liu appealed to the Board of

Immigration Appeals (“BIA”). The BIA affirmed, agreeing with the IJ that, even if Liu
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were deemed credible, she failed to sustain her burden of proof applicable to asylum and

the more stringent burden applicable to withholding of removal. The BIA concluded that

the alleged incidents did not rise to the level of persecution on account of a protected

ground and that the record did not support her claim that she has a well-founded fear of

persecution. The BIA also rejected Liu’s claim for relief under the CAT. 

Liu filed a timely petition for review in the Second Circuit. The petition

was transferred to this Circuit. We have jurisdiction over her petition pursuant to 8

U.S.C. § 1252(a). We uphold the BIA’s determinations if they are supported by

reasonable, substantial and probative evidence on the record considered as a whole. 

Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir. 2008). Under the substantial evidence

standard, “the BIA’s finding must be upheld unless the evidence not only supports a

contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.

2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)).

To be granted asylum, Liu must show that she is “unable or unwilling to

return to [China] . . . because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42)(A); see also 8 U.S.C. § 1158(b)(1)(A). To be eligible

for withholding of removal, Liu must demonstrate that “there is a greater-than-fiftypercent chance of persecution” in China based on one of these protected grounds. 

Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir. 1998); see also 8 U.S.C. § 1231(b)(3)(C). 
For relief under the CAT, Liu must demonstrate that it is more likely than not that she

would be tortured if removed to China. See 8 C.F.R. § 208.16(c)(2). 

Liu argues that the BIA erred when it reasoned that the “alleged incidents

do not rise to the level of persecution on account of a protected ground.” (A.R. at 2.) 

Liu, however, has offered no arguments that would undermine this conclusion. She

argues only that the facts of the case are “unclear” as to whether she was attacked based

on a protected ground. (Appellant’s Br. 14-15.) She makes similar arguments with

regard to her well-founded fear of future persecution and whether she belongs to a

particular social group. (Id. at 16, 17.) If the facts are unclear, however, the IJ and BIA

properly denied her petition as it is her burden to establish eligibility for relief. See

Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir. 2003) (applicant has burden of showing

that the persecution was on account of the applicant’s race, religion, nationality,

membership in a particular social group, or political opinion). 

Moreover, aside from pointing to general country conditions in China, Liu

did not produce evidence that it is more likely than not that she would be tortured by or at

the acquiescence of Chinese officials if she returned to China. Therefore, she is not

eligible for protection under the CAT. Pierre v. Att’y Gen., 528 F.3d 180, 186 (3d Cir.

2008) (en banc). 

For the foregoing reasons, we will deny her petition for review. 

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