Guo Qiang Liu v. Holder ( 2010 )

09-3649-ag
Liu v. Holder
BIA
Mulligan, IJ
A099 930 506
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
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ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 5 th day of May, two thousand ten.
PRESENT:
JOSÉ A. CABRANES,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
______________________________________
GUO QIANG LIU,
Petitioner,
v. 09-3649-ag
NAC
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
BOARD OF IMMIGRATION APPEALS,
Respondents.
______________________________________
FOR PETITIONER: Henry Zhang, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Michael P. Lindemann,
Assistant Director; Jeffrey L.
Menkin, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Guo Qiang Liu, a native and citizen of the People’s
Republic of China, seeks review of an August 4, 2009, order
of the BIA affirming the January 18, 2008, decision of
Immigration Judge (“IJ”) Thomas Mulligan, which denied Liu’s
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Guo
Qiang Liu No. A099 930 506 (BIA Aug. 4, 2009), aff’g No.
A099 930 506 (Immig. Ct. N.Y. City Jan. 18, 2008). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009).
An alien who demonstrates past persecution benefits
from the presumption that he faces a threat of future
persecution for the purposes of both asylum and withholding
of removal. See 8 C.F.R. §§ 1208.13(b)(1),
1208.16(b)(1)(i). The burden rests firmly with the
government to rebut this presumption by showing, by a
preponderance of the evidence, either a “fundamental change
in circumstances such that the applicant’s life or freedom
would not be threatened on account of any of the five
[protected] grounds . . . upon the applicant’s removal” to
that country or the reasonable possibility of internal
relocation within the country of removal. 8 C.F.R. §§
1208.13(b)(1)(i)-(ii), 1208.16(b)(1)(i)-(ii). The IJ
determined that Liu had suffered past persecution. The BIA
did not disagree. The IJ went on to find, however, that Liu
“no longer has a well-founded fear because of the long
period of time in which he was able to live in China,
apparently without incident. In terms of his anticipated
problems if he and his wife were to have another child, this
is speculative.” The BIA agreed, stating, “[Liu] lived
safely in China for more than 3 years subsequent to his
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release from custody on account of his opposition to the
population control law. The Chinese government’s failure to
take action against him for that extended period is
demonstrative of its lack of intention to take additional
action if he returns.” Liu’s only argument to this court is
that at the time of his detention he was threatened with
sterilization if he violated the family planning laws. For
over three years, however, he was left entirely alone. The
IJ’s findings, affirmed by the BIA, are sufficient to rebut
the presumption that Liu had a reasonable fear of future
persecution.
This Court has held that when an asylum applicant's
immediate family members would logically fear persecution on
the same grounds as the applicant, but they continue to
reside safely in the home country after the alien's
emigration, it "cuts against [the applicant's] argument that
she has a well-founded fear of persecution." Melgar de
Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999). This
principle logically applies all the more strongly when it is
the alien himself who continues to reside safely in his home
country for an extended period of time. 1
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Our recent decision in Kone v. Holder, 596 F.3d 141(2d Cir. 2010), is not to the contrary. There, in contrast
to Liu’s on-going permanent residence in his home country
during which there were no subsequent incidents of
persecution, petitioner Kone had made several return trips
to her native country but did not reside there for an
extended length of time. Under those circumstances, this
court held in pertinent part:
While return trips may provide some evidence of a
relevant change in circumstances, they do not
supply the requisite preponderance of evidence.
The government cannot satisfy its burden to
demonstrate that [petitioner] will not be
threatened simply by showing that she enjoyed
periods with no new persecution.
596 F.3d at 150. The obvious distinction between sporadic
visits and on-going permanent residence over a three-year
period removes the facts of this case from Kone’s ambit and
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is
VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
the contradistinction further supports the agency’s
rationale.
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