Bao Jun Liu v. Holder , 478 F. App'x 692 ( 2012 )

10-3535-ag
Liu v. Holder
BIA
Holmes-Simmons, IJ
A099 592 228
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 19th day of April, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 ROBERT A. KATZMANN,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 BAO JUN LIU
14 Petitioner,
15
16 v. 10-3535-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Joshua Bardavid, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Shelley R. Goad, Assistant
27 Director; Jennifer P. Levings,
28 Senior Litigation Counsel, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
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 Petitioner Bao Jun Liu, a native and citizen of the
6 People’s Republic of China, seeks review of an August 6,
7 2010, order of the BIA, affirming the September 22, 2008,
8 decision of Immigration Judge (“IJ”) Theresa Holmes-Simmons,
9 which denied his application for asylum, withholding of
10 removal, and relief under the Convention Against Torture
11 (“CAT”), and denying his motion to remand and reopen. In re
12 Bao Jun Liu, No. A099 592 228 (B.I.A. Aug. 6, 2010), aff’g
13 No. A099 592 228 (Immig. Ct. N.Y. City Sept. 22, 2008). We
14 assume the parties’ familiarity with the underlying facts
15 and procedural history in this case.
16 I. Asylum, Withholding of Removal, and CAT
17 Under the circumstances of this case, we have reviewed
18 the IJ’s decision as modified by the BIA decision. See Xue
19 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
20 Cir. 2005). The applicable standards of review are well-
21 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
22 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2
1 In pretermitting Liu’s asylum application as untimely,
2 the agency found that although the July 2004 death of his
3 attorney was an “extraordinary circumstance,” his asylum
4 application was nonetheless untimely because he waited to
5 file until January 2006. Liu argues that mistranslations
6 prevented him from providing testimony that he acted with
7 due diligence in pursuing his asylum application after the
8 death of his prior counsel. Because this argument
9 potentially implicates a due process violation, see Augustin
10 v. Sava, 735 F.2d 32, 38 (2d Cir. 1984), we retain
11 jurisdiction to review the issue, see Xiao Ji Chen v. U.S.
12 Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).
13 Nevertheless, the record does not support Liu’s contention
14 that he was prevented from explaining why he did not apply
15 for asylum during the seventeen months following his
16 attorney’s death. Rather, the record shows that the
17 translator asked Liu to “repeat because of the strong
18 accent,” which Liu did. Moreover, the record is clear that
19 the BIA understood Liu’s explanation for his delay in filing
20 – that he thought if his first attorney had filed an
21 application re-filing would cause a problem by creating two
22 alien registration numbers – but found this explanation
3
1 insufficient. Accordingly, the agency’s pretermission of
2 Liu’s asylum application was not flawed by any due process
3 deficiency. See Burger v. Gonzales, 498 F.3d 131, 134 (2d
4 Cir. 2007).
5 As to his remaining claims, because Liu does not
6 challenge the BIA’s finding that he did not demonstrate past
7 persecution, he is not entitled to the presumption of a
8 well-founded fear of persecution. See 8 C.F.R.
9 § 1208.16(b)(1)(ii), (2). Accordingly, we address only
10 whether Liu independently established that it was more
11 likely than not that he would be persecuted, and conclude
12 that the BIA reasonably found that, even accepting the
13 veracity of his description of past events, Liu did not
14 demonstrate that he was more likely than not to face
15 persecution in China. Contrary to Liu’s argument that the
16 BIA ignored his evidence, the BIA noted that letters from
17 Liu’s wife and her grandfather showed that Liu’s wife had
18 relocated within China and did not mention any encounters
19 with the family planning authorities after the abortion in
20 April 2004. See Melgar de Torres v. Reno, 191 F.3d 307, 313
21 (2d Cir. 1999). Although Liu’s wife asserted that his
22 daughter would soon reach school-age and would not be able
4
1 to attend school, the record does not compel the conclusion
2 that the BIA ignored this aspect of the evidence. See Xiao
3 Ji Chen, 471 F.3d at 338 n.17.
4 Liu also argues that background evidence in the record
5 supports his fear of sterilization as a punishment for
6 violating the family planning law, pointing to a Statement
7 of Congressman Christopher H. Smith, dated June 1998, that
8 “sterilization is sometimes employed . . . as a punishment.”
9 Nevertheless, the BIA did not err in concluding that this
10 generalized evidence was insufficient to establish that Liu
11 was more likely than not to face persecution if returned to
12 China, particularly in light of more current evidence in the
13 record that the central government in China has prohibited
14 forced sterilizations. See Jian Hui Shao v. Mukasey, 546
15 F.3d 138, 149, 171-72 (2d Cir. 2008); Paul v. Gonzales, 444
16 F.3d 148, 155-56 (2d Cir. 2006). Similarly, although Liu
17 argues that he will face economic persecution in China, the
18 BIA reasonably found that he did not show that he was more
19 likely than not to face economic harm rising to the level of
20 persecution, especially in light of his admission that he
21 was unsure whether he would be fined after his long absence
22 from China, and his failure to present evidence of his
23 personal finances. See Guan Shan Liao v. U.S. Dep’t of
5
1 Justice, 293 F.3d 61, 70 (2d Cir. 2002). For the same
2 reasons, despite Liu’s assertions that he is likely to be
3 tortured by sterilization in China, the BIA did not err in
4 denying CAT relief. See Xue Hong Yang, 426 F.3d at 523;
5 Pierre v. Gonzales, 502 F.3d 109, 118-19 (2d Cir. 2007).
6 II. Motion to Reopen
7 We have reviewed the BIA’s denial of Jiang’s motion to
8 remand and reopen for abuse of discretion. See Li Yong Cao
9 v. U.S. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir. 2005).
10 Here, the BIA did not abuse its discretion in denying Liu’s
11 motion to reopen because, even assuming that the translation
12 errors he alleges were present, he demonstrated no prejudice
13 as a result. See Burger, 498 F.3d at 134; Guo Qi Wang v.
14 Holder, 583 F.3d 86, 89 n.1 (2d Cir. 2009).
15 Liu argues that the mistakes and incompetence of the
16 translator infringed on his right to due process because he
17 was prevented from expanding on his testimony. Although the
18 record reflects that the translator asked Liu to repeat
19 himself on a number of occasions and mentioned that Liu had
20 a “strong accent,” the interpreter then translated Liu’s
21 repeated testimony, and there is no indication that Liu was
22 unable to express himself adequately through the
23 interpreter. In addition, Liu was represented by counsel
6
1 throughout his proceedings, yet his counsel did not raise
2 any objection to the sufficiency of the hearing or suggest
3 that he would like to elicit additional testimony. Thus,
4 Liu’s due process claim is without merit. See Burger, 498
5 F.3d at 134; see also Hoodho v. Holder, 558 F.3d 184, 192
6 (2d Cir. 2009) (“[A] party who voluntarily chose an attorney
7 as his representative in an action cannot avoid the
8 consequences of the acts or omissions of this freely
9 selected agent.” (internal punctuation omitted)).
10 Liu also argues that he was prejudiced by various
11 alleged mistranslations, pointing to differences between the
12 translation of the hearing in the record and that provided
13 by his independent translator. Review of the differences
14 between the translations, however, reveals that the alleged
15 mistakes were inconsequential, as his statements were
16 understood by the agency and many of the alleged errors did
17 not affect the meaning of his testimony. Because the
18 alleged mistranslations did not result in any significant
19 loss of meaning, the BIA reasonably concluded that he was
20 not prejudiced and did not abuse its discretion in denying
21 remand. See Guo Qi Wang, 583 F.3d at 89 n.1; Ke Zhen Zhao
22 v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001).
23
7
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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8