09-2169-ag

Li v. Holder

BIA

Reichenberg, IJ

A077 660 439

A098 586 518

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

4 New York, on the 2 day of March, two thousand ten. nd

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 JOSEPH M. McLAUGHLIN,

10 GERARD E. LYNCH,

11 Circuit Judges.

12 _______________________________________

13

14 YUE XIAN LI, CUN XI ZHENG,

15 Petitioners, 

16

17 v. 09-2169-ag

18 NAC

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _______________________________________

23

24 FOR PETITIONERS: Yimin Chen, New York, New York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Ernesto H. Molina, Jr.,

28 Assistant Director; Drew C.

29 Brinkman, Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
Cun Xi Zheng and Yue Xian Li are husband and wife. 1

This order refers to them collectively as “Petitioners.”

2

1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED, that the petition for review

4 is DENIED.

5 Yue Xian Li and Cun Xi Zheng, natives and citizens of

6 the People’s Republic of China, seek review of an April 24,

7 2009, order of the BIA affirming the June 21, 2007, decision

8 of Immigration Judge (“IJ”) Margaret R. Reichenberg, which

9 denied their application for asylum, withholding of removal,

10 and relief under the Convention Against Torture (“CAT”).1

11 In re Yue Xian Li, Cun Xi Zheng, Nos. A077 660 439/A098 586

12 518 (B.I.A. Apr. 24, 2009), aff’g Nos. A077 660 439/A098 586

13 518 (Immig. Ct. N.Y. City June 21, 2007). We assume the

14 parties’ familiarity with the underlying facts and

15 procedural history in this case.

16 Under the circumstances of this case, we review the

17 IJ’s decision as modified by the BIA’s decision. See Xue

18 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

19 Cir. 2005). The applicable standards of review are well20 established. See 8 U.S.C. § 1252(b)(4)(B); see also Manzur

21 v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.

22 2007). 
3

1 I. Asylum and Withholding of Removal

2 Substantial evidence supports the agency’s adverse

3 credibility determination. Petitioners admit that they

4 fabricated their claim that Li underwent a forced abortion

5 and that they submitted fraudulent documents in support of

6 that claim. They argue, however, that because they

7 voluntarily recanted their false claim, it cannot be the

8 basis for an adverse credibility finding. They explain that

9 because they were uneducated and did not speak English, they

10 were left with no other choice but to assert the claim given

11 to them by the snakehead and immigrant service agency that

12 were assisting them. We are not unsympathetic to this

13 argument, having recognized that immigrants are a

14 “vulnerable population . . . who often arrive unfamiliar

15 with our language and culture, in economic deprivation and

16 in fear.” Aris v. Mukasey, 517 F.3d 595, 600 (2d Cir.

17 2008). Yet, although applicants should be encouraged to

18 recant false testimony and disavow fraudulent evidence, it

19 does not follow that the agency must credit testimony and

20 evidence the applicant later presents. Here, the IJ did not

21 err in applying the maxim falsus in uno, falsus in omnibus,

22 and disbelieving Petitioners’ new claim involving a forced
 Although both the BIA and the IJ rejected 2

Petitioners’ claim of a fear of future persecution based

on the birth of their three children, Petitioners do not

challenge that determination here. Accordingly, we deem

any such challenge waived. See Yueqing Zhang v.

Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005). 

4

1 IUD insertion. See Siewe v. Gonzales, 480 F.3d 160, 170 (2d

2 Cir. 2007) (finding that once an IJ concludes that a

3 document is false, he or she is, subject to certain

4 limitations, “free to deem suspect other documents (and to

5 disbelieve other testimony) that depend for probative weight

6 upon [the applicant’s] veracity”). 

7 Accordingly, the credibility determination was

8 supported by substantial evidence. The IJ’s adverse

9 credibility determination is fatal to Petitioners’ challenge

10 to the denial of their application for asylum and

11 withholding of removal. See Paul v. Gonzales, 444 F.3d 2

12 148, 154-55 (2d Cir. 2006). 

13 II. CAT Relief

14 Petitioners also assert that they are eligible for CAT

15 relief based on their illegal departure from China and that

16 the agency erred in failing to consider that claim. 

17 Petitioners are correct that neither the IJ nor the BIA

18 specifically addressed their claim that they would be jailed
5

1 and tortured for illegally departing China. Yet even

2 assuming this was error, see Ramsameachire v. Ashcroft, 357

3 F.3d 169, 184-85 (2d Cir. 2004)(“[T]he BIA's decision with

4 respect to an alien's claims for asylum and withholding of

5 removal . . . should never . . . be determinative of the

6 alien's CAT claim.”), we decline to remand because doing so

7 would be futile, see Xiao Ji Chen v. U.S. Dep’t of Justice,

8 471 F.3d 315, 339 (2d Cir. 2006). As we have held time and

9 again, the BIA does not err in finding applicants ineligible

10 for CAT relief when they claim only that they would be

11 imprisoned in China for their illegal departure and that

12 torture occurs in Chinese prisons. See Mu Xiang Lin v. U.S.

13 Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005); see

14 also Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir.

15 2003) (requiring an alien to demonstrate that someone in his

16 “particular alleged circumstances” would more likely than

17 not be tortured). Because Petitioners make precisely this

18 claim, and allege no particular circumstances indicating a

19 likelihood that they will be tortured, we can “‘confidently

20 predict’ that the agency would reach the same decision” were

21 we to remand. Xiao Ji Chen, 471 F.3d at 339.

22 For the foregoing reasons, the petition for review is

23 DENIED. As we have completed our review, the temporary stay
6

1 of removal that the Court previously granted in this

2 petition is VACATED, and the pending motion for a stay of

3 removal in this petition is DISMISSED as moot.

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk

6

7