Pursuant to Federal Rule of Appellate Procedure 1

43(c)(2), Attorney General Eric. H. Holder, Jr., is

automatically substituted for former Attorney General

Michael B. Mukasey as respondent in this case.

07-4666-ag

Liu v. Holder

BIA

Holmes-Simmons, IJ

A096 336 584

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 New

4 York, on the 20 day of April, two thousand ten. th

5

6 PRESENT:

7 BARRINGTON D. PARKER,

8 RICHARD C. WESLEY,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges. 

11 _______________________________________

12

13 FENG YING LIU,

14 Petitioner, 

15

16 v. 07-4666-ag

17 NAC

18 UNITED STATES DEPARTMENT OF JUSTICE,

19 ERIC H. HOLDER, JR., UNITED STATES 1

20 ATTORNEY GENERAL,

21 Respondents.

22 _______________________________________

23
2

1 FOR PETITIONER: Yee Ling Poon, New York, New York.

2 FOR RESPONDENTS: Gregory G. Katsas, Acting Assistant

3 Attorney General; Terri J. Scadron,

4 Assistant Director, Office of

5 Immigration Litigation, United

6 States Department of Justice,

7 Washington, 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 Feng Ying Liu, a native and citizen of the People’s

14 Republic of China, seeks review of a September 25, 2007, order

15 of the BIA denying her motion to remand and affirming the

16 September 26, 2005, decision of Immigration Judge (“IJ”)

17 Theresa Holmes-Simmons, which denied her application for

18 asylum, withholding of removal, and relief under the

19 Convention Against Torture (“CAT”). In re Feng Ying Liu, No.

20 A096 336 584 (B.I.A. Sept. 25, 2007), aff’g No. A096 336 584

21 (Immig. Ct. N.Y. City Sept. 26, 2005). 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 the IJ’s

25 decision as modified and supplemented by the BIA’s decision.

26 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

27 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
3

1 Cir. 2005). The applicable standards of review are well2 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia

3 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

4 I. Asylum, Withholding of Removal, and CAT Relief

5 We conclude that the agency’s adverse credibility

6 determination was supported by substantial evidence. See Xian

7 Tuan Ye v. Dep’t of Homeland Security, 446 F.3d 289, 294 (2d

8 Cir. 2006). As the IJ found, although Liu stated at one point

9 that she was kicked by police, she failed to make any such

10 assertion in her asylum application or upon direct

11 examination. Additionally, the BIA reasonably found

12 inconsistent Liu’s testimony regarding whether her cousin was

13 still detained. The IJ also reasonably found implausible

14 Liu’s testimony that her cousin would have told the police

15 that he had given his Falun Gong books to her for safekeeping.

16 See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007);

17 Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007).

18 Finally, given Liu’s already questionable testimony, the IJ

19 did not err in declining to accord weight to a letter

20 purportedly from Liu’s father, or in finding that her failure

21 to provide corroboration further undermined her credibility.

22 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341
4

1 (2d Cir. 2006). Such were adequate bases for finding Liu not

2 credible. See Xian Tuan Ye, 446 F.3d at 294. To the extent

3 that Liu offered explanations for the discrepancies the IJ

4 identified, moreover, the IJ was not compelled to credit them.

5 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

6 We do find error in one respect. We cannot agree with

7 the IJ’s finding that it was implausible that Liu would not

8 know whether a warrant had been issued for her arrest. This

9 implausibility finding was not based on common sense and

10 ordinary experience, Siewe, 480 F.3d at 168-69, but required

11 a knowledge of Chinese government practice that the IJ could

12 not claim to have, see Cao He Lin v. U.S. Dep’t of Justice,

13 428 F.3d 391, 405 (2d Cir. 2005). In that respect we are left

14 with a “firm conviction of error.” See Wensheng Yan v.

15 Mukasey, 509 F.3d at 67. Despite this erroneous finding,

16 however, we conclude that remand would be futile, as

17 substantial evidence supports the remainder of the IJ’s

18 findings which, together, provide an ample basis for the

19 adverse credibility determination. See Xiao Ji Chen, 471 F.3d

20 at 339 (deeming remand futile where the remanding court can

21 “confidently predict” that the IJ would reach the same

22 decision absent the errors that were made). Thus, the agency
5

1 properly denied Liu’s asylum and withholding of removal

2 claims. 

3 II. Motion to Remand

4 We further find that the BIA did not abuse its discretion

5 in denying Liu’s motion to remand, because she failed to

6 demonstrate her prima facie eligibility for relief. See Li

7 Yong Cao v. U.S. Dep't of Justice, 421 F.3d 149, 156 (2d Cir.

8 2005); Matter of Coelho, 20 I. & N. Dec. 464, 471-72 (BIA

9 1992). The BIA reasonably determined that Liu’s claim that

10 she feared being forcibly inserted with an IUD, without more,

11 failed to establish her eligibility. See Xia Fan Huang v.

12 Holder, 591 F.3d 124, 129-30 (2d Cir. 2010) (according Chevron

13 deference to the BIA’s determination in Matter of M-F-W & L-G,

14 24 I. & N. Dec. 633 (BIA 2008)). Additionally, the BIA

15 reasonably determined that Liu’s argument that she

16 demonstrated her prima facie eligibility based on the birth of

17 her U.S. citizen daughter is foreclosed by this Court’s

18 decision in Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir.

19 2008). Finally, the BIA reasonably found impermissibly

20 speculative Liu’s claim that she had a well-founded fear of

21 persecution based on her intention to have a second child.

22 See Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir.

23 2005) (holding that, absent solid support in the record for
6

1 the petitioner’s assertion that he would be subjected to

2 forced sterilization, his fear was “speculative at best”). 

3 For the foregoing reasons, the petition for review is

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

5 that the Court previously granted in this petition is VACATED,

6 and any pending motion for a stay of removal in this petition

7 is DISMISSED as moot. Any pending request for oral argument

8 in this petition is DENIED in accordance with Federal Rule of

9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

10 34.1(b).

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk

13

14