Xue Hua Liu v. Holder , 385 F. App'x 17 ( 2010 )

09-3569-ag
X ue H ua Liu v. H older
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY 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 SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
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 14 th day of July, two thousand ten.
PRESENT: REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges,
NICHOLAS G. GARAUFIS,
Judge.*
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XUE HUA LIU,
Petitioner,
v. No. 09-3569-ag
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
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APPEARING FOR PETITIONER: WAISIM M. CHEUNG, Tsoi and Associates,
New York, New York.
APPEARING FOR RESPONDENT: YAMILETH G. HANDUBER, Trial Attorney
(Tony West, Assistant Attorney General, Richard
M. Evans, Assistant Director, Kevin J. Conway,
Attorney, on the brief), Office of Immigration
Litigation, Civil Division, United States
Department of Justice, Washington, D.C.
*
District Judge Nicholas G. Garaufis of the United States District Court for the
Eastern District of New York, sitting by designation.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (“BIA” or “Board”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.
Petitioner Xue Hua Liu, a native and citizen of China, seeks review of a July 29, 2009
order of the BIA denying her motion to reopen removal proceedings based on claims of new
reasons to fear persecution if returned to China, specifically, her recent conversion to
Christianity and the birth of her first child. See In re Xue Hua Liu, No. A098 980 963
(B.I.A. July 29, 2009). We review the BIA’s denial of a motion to reopen for abuse of
discretion, mindful of the Supreme Court’s admonition that such motions are disfavored. See
Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v. Doherty, 502 U.S. 314,
322-23 (1992)). “The BIA abuses its discretion when its decision provides no rational
explanation, inexplicably departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements.” Kulhawik v. Holder, 571 F.3d 296, 298
(2d Cir. 2009) (internal quotation marks omitted). In applying these standards, we assume
the parties’ familiarity with the facts and record of prior proceedings, which we reference
only as necessary to explain our decision.
A motion to reopen immigration proceedings “shall state the new facts that will be
proven at a hearing to be held if the motion is granted, and shall be supported by affidavits
or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B); see also 8 C.F.R. § 1003.2(c)(1).
To prevail on a motion to reopen, a petitioner must also establish prima facie eligibility for
asylum, i.e., a “realistic chance” that she will be able to establish eligibility for the requested
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relief. Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005) (internal quotation marks
omitted). Here, we identify no abuse of discretion in the BIA’s determination that petitioner
failed to adduce evidence sufficient to manifest a realistic chance for relief based on feared
religious persecution.
Although Liu submitted in a December 19, 2008 affidavit that she had “adopted the
Christian faith” and attended the “Chinese Promise Baptist Church since September 7, 2008,”
Aff. at 1, she failed to offer evidence corroborating this claim. In fact, as the BIA correctly
observed, the evidence she did offer as corroboration – a letter from the church pastor and
photographs of herself with the pastor – only confirmed Liu’s church attendance on a single
day, September 7, 2008. See Letter from Pastor Samuel F. Wong (Sept. 26, 2008) (“This is
to certify that Ms. Xue Hua Liu has come to attend our Sunday School, Sunday Service and
prayer meeting on September 7, 2008.”). The pastor’s failure to confirm petitioner’s
attendance on the intervening Sundays between September 7, 2008, and the late-September
date of the letter together with Liu’s failure to provide any other corroboration of her practice
of Christianity through the time of her own December 19, 2008 affidavit provide a rational
basis for the BIA to conclude that petitioner’s claim of conversion was too suspect to
evidence a “realistic chance” of relief based on feared religious persecution.
Nor do we identify abuse of discretion in the BIA’s denial of reopening based on the
birth of Liu’s child in the United States. While the Board did not specifically reference the
prima facie standard in this part of its order, its express finding that the evidence attached to
Liu’s motion did not indicate that she would be sterilized on account of the birth of one child
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or that she had a well-founded fear of persecution on account of anticipated resistance to
China’s family planning policies is reasonably understood as a determination that Liu failed
to demonstrate a realistic chance of success on her claim. We detect no abuse of discretion
in this determination given (1) Liu’s failure to adduce evidence that giving birth to a single
child in the United States violates China’s family planning policy, much less that such
conduct can result in forced sterilization; and (2) the highly speculative nature of Liu’s
anticipated resistance to China’s family planning policy. See Jian Hui Shao v. Mukasey, 546
F.3d 138, 170-73 (2d Cir. 2008) (affirming denial of motion to reopen where petitioner failed
to demonstrate that birth of second child in United States violated Chinese policy or
reasonable possibility of forced sterilization); Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d
Cir. 2005) (holding that absent solid record support for petitioner’s assertion that he would
be subjected to forced sterilization on account of his two children born in the United States,
feared persecution “is speculative at best”).
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.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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