09 -21 69 -ag

Li v. Holder BIA Reichenberg, IJ A077 660 439 A098 586 518 

### UNITE D STATES C OURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDE R

RU L I N G S B Y S UMMAR Y O R D E RD O N O T H AVE P R E C E D E N T I A L E F F E C T . C I T A T I O N T O AS UMMAR Y O RDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RUL E 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 Petitioner s, 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 the People’s Republic of China, 6 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, 1 0 and relief under the Convention Against Torture (“CAT”). 1 11 In re Yue Xian Li, Cun Xi Zheng , Nos. A077 660 439/A098 586 1 2 518 (B.I.A. Apr. 24, 2009), aff’gNos. A077 660 439/A098 586 518 1 3 (Immig. Ct. N.Y. City June 21, 2007). We assume the 1 4 parties’ familiarity with the underlying facts and 1 5 procedural history in this case. 1 6 Under the circumstances of this case, we review the 1 7 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 1 9 Cir. 2005). The applicable standards of review are wellestablished. 20 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. 2 2 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 1 0 were left with no other choice but to assert the claim given 1 1 to them by the snakehead and immigrant service agency that 1 2 were assisting them. We are not unsympathetic to this 1 3 argument, having recognized that immigrants are a 1 4 “vulnerable population . . . who often arrive unfamiliar 1 5 with our language and culture, in economic deprivation and 1 6 in fear.” Aris v. Mukasey , 517 F.3d 595, 600 (2d Cir. 2008). Yet, a 1 7 lthough applicants should be encouraged to 1 8 recant false testimony and disavow fraudulent evidence, it 1 9 does not follow that the agency must credit testimony and 2 0 evidence the applicant later presents. Here, the IJ did not 2 1 err in applying the maxim falsus in uno, falsus in omnibus , 2 2 and disbelieving Petitioners’ new claim involving a forcedAlthough 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 IUD insertion. 1 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 1 0 to the denial of their application for asylum and 1 1 withholding of removal. See Paul v. Gonzales , 444 F.3d 2 148, 154-55 (2d Cir. 2006). 12 II. CAT Relief 13 1 4 Petitioners also assert that they are eligible for CAT 1 5 relief based on their illegal departure from China and that 1 6 the agency erred in failing to consider that claim. 1 7 Petitioners are correct that neither the IJ nor the BIA 1 8 specifically addressed their claim that they would be jailed5 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 alien's CAT claim.”), 6 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 1 0 for CAT relief when they claim only that they would be 1 1 imprisoned in China for their illegal departure and that 1 2 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. 1 5 2003) (requiring an alien to demonstrate that someone in his 1 6 “particular alleged circumstances” would more likely than 1 7 not be tortured). Because Petitioners make precisely this 1 8 claim, and allege no particular circumstances indicating a 1 9 likelihood that they will be tortured, we can “‘confidently 2 0 predict’ that the agency would reach the same decision” were we to remand. Xiao Ji Chen , 471 F.3d at 339. 21 For the foregoing reasons, the petition for review is 22 2 3 DENIED. As we have completed our review, the temporary stay6 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