Li Liu v. Eric Holder, Jr. , 510 F. App'x 432 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0031n.06
No. 12-3344
FILED
UNITED STATES COURT OF APPEALS Jan 07, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
LI FANG LIU; YONG QIN LIU, )
)
Petitioners, )
) ON PETITION FOR REVIEW FROM A
v. ) FINAL ORDER OF THE BOARD OF
) IMMIGRATION APPEALS
ERIC H. HOLDER, JR., Attorney General, )
)
Respondent. )
)
Before: MERRITT, MARTIN, and GILMAN, Circuit Judges.
PER CURIAM. Li Fang Liu (Li) and her husband, Yong Qin Liu (Yong) (collectively “the
Lius”), are natives and citizens of China petitioning for review of an order by the Board of
Immigration Appeals (Board) affirming a decision by an Immigration Judge (IJ) denying their
applications for asylum, withholding of removal, and relief under the Convention Against Torture.
With the assistance of smugglers, Yong entered the United States in November 1997, and
Li entered in April 2000. Li filed her application for asylum on April 21, 2006, naming Yong as a
derivative beneficiary, based on a fear of persecution because they had three children at the time they
filed their application, subjecting them to sterilization if they returned to China, according to the
country’s family-planning policies. Li and her husband also feared that, in addition to sterilization,
they would be forced to pay exorbitant fines and fees, and that if they did not pay the fines, they
would be deprived of civil services in China, including a government-provided education for their
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children. Yong later withdrew his request for asylum, and filed a separate application for
withholding of removal and relief under the Convention Against Torture.
The government began removal proceedings against the Lius who subsequently admitted
removability. An IJ conducted a joint hearing in 2008 and determined that Li’s asylum application
was untimely because it was not filed until 2006, approximately six years after she arrived in the
United States. The IJ determined that, even if the birth of Li’s second child in 2001, the first having
been born in China in 1996, was considered a changed circumstance that could toll the one-year
statutory period for filing an asylum application, Li had not filed within a reasonable period after this
change, citing 8 C.F.R. § 1208.4(a)(4)(ii).
The IJ then determined that Li had not shown that she was subjected to past persecution, or
that she had a well-founded fear of persecution should she be removed to China. The IJ stated that
the family-planning policies regarding forced sterilization had changed in Fujian, the Lius’ home
province. The IJ also found that, even if Li and Yong were charged a fee to register their children
for educational benefits, the fee would not amount to economic persecution given their apparent
financial circumstances. Moreover, the Lius had not demonstrated any intent to have another child
after moving to China. The IJ concluded that, as a result, Li and Yong had failed to meet their
burden for either asylum or withholding of removal.
The Board dismissed the Lius’ appeal, agreeing with the IJ that Li’s asylum application was
not timely, and that Li had failed to file her application within a reasonable time after her changed
circumstances, specifically the birth of her second child in 2001. The Board also determined that
Li and Yong had failed to establish past persecution, or a well-founded fear of persecution, relying
on 2007 and 2008 country reports showing that Fujian Province no longer practiced or supported
forced sterilization, particularly if children had been born abroad. In addition, the Board noted that
any fines or fees that the Lius would be required to pay to register their children would not reduce
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them to an impoverished existence that would equate to economic persecution. The Board then
affirmed the denial of the Lius’ requests for relief.
Li argues that she was credible, that the one-year period for filing her asylum application
should have been measured from the time her third child was born in 2005, and that she had
established a well-founded fear of future persecution as a member of a group who would be
subjected to forced sterilization upon her return. Li also argues that, based on the same facts and
circumstances, she met her burden for withholding of removal and for relief under the Convention
Against Torture.
Li and Yong fail to present any argument on appeal regarding their claim of past persecution
in China. Therefore, they have waived the opportunity for us to review that claim. See Patel v.
Gonzales, 470 F.3d 216, 219 (6th Cir. 2006).
The Lius argue that we must accept their testimony as credible because the IJ failed to make
an explicit adverse-credibility determination. However, their credibility is not an issue because the
Board accepted their testimony as credible in deciding their case.
“Where the [Board] reviews the immigration judge’s decision and issues a separate opinion,
rather than summarily affirming the immigration judge’s decision, we review the [Board’s] decision
as the final agency determination.” Shaya v. Holder, 586 F.3d 401, 405 (6th Cir. 2009) (quotation
marks and citation omitted). We will not reverse the Board’s findings unless a “reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4); Karimijanaki
v. Holder, 579 F.3d 710, 721 (6th Cir. 2009). Moreover, we will uphold the Board’s findings as long
as they are “supported by reasonable, substantial, and probative evidence on the record considered
as a whole.” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004) (quoting INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992)).
An application for asylum filed after one year from the date of entry is untimely. See 8
U.S.C. § 1158(a)(2)(B). Under section 1158(a)(3), we are precluded from reviewing the question
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of whether an asylum application has been timely filed within the one-year limit. See Castellano-
Chacon v. INS, 341 F.3d 533, 544 (6th Cir. 2003). Jurisdiction does not lie when the appeal “seeks
review of discretionary or factual questions.” Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir.
2006). The questions Li presents regarding whether her delay was reasonable, including the question
of whether she was aware of any family-planning policy violation after her second child was born,
are factual in nature. Thus, we lack jurisdiction to consider them. Khozhaynova v. Holder, 641 F.3d
187, 191 (6th Cir. 2011).
However, we have jurisdiction to consider the Lius’ claims of withholding of removal and
relief under the Convention Against Torture. To prevail on a request to withhold removal, an alien
must show that there is a clear probability that the alien would be subject to persecution if he or she
returned to the country in question. Pablo-Sanchez v. Holder, 600 F.3d 592, 594 (6th Cir. 2010).
The Attorney General may not remove an alien to a country if the Attorney General decides that the
alien’s life or freedom would be threatened in that country because of the alien’s race, religion,
nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A);
Vasha v. Gonzales, 410 F.3d 863, 875 (6th Cir. 2005). In order to establish entitlement to relief
under the Convention Against Torture, an alien must prove that it is more likely than not that the
alien will be tortured with the consent or acquiescence of public officials if he or she returns to the
country in question. See 8 C.F.R. § 208.16(c)(2); Khozhaynova, 641 F.3d at 197.
The Board’s decision is supported by reports from the United States Department of State
showing that the policy regarding the forced sterilization in China has changed over the last five
years. The Lius admit that these more recent reports do not mention any specific cases of
sterilization in Fujian Province, but argue, nevertheless, that this coercive policy still exists
throughout the country. We have considered similar claims and concluded that, considering all the
information on family planning in Fujian, including the 2007 and 2008 country reports, a rational
adjudicator could find that the province is lax in enforcing its formal family-planning policies, and
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that “the probability of forced sterilization for any Chinese national returning to Fujian is low.” Xue
Ying Lin v. Gonzales, 203 F. App’x 704, 708 (6th Cir. 2006). The fact that all but one of the Lius’
four children were born in the United States “further decreases the likelihood of forced sterilization
upon return.” Id.; see also Fang Huang v. Mukasey, 523 F.3d 640, 652-53 (6th Cir. 2008).
The Board properly determined, based on the Lius’ description of their financial
circumstances, and the lack of any evidence to the contrary, any fines and fees imposed after
registering their children would not equate to economic persecution. See Daneshvar v. Ashcroft, 355
F.3d 615, 624 n.9 (6th Cir. 2004). Further, the Lius have never received any personal threats or
information directing them to undergo forced sterilization if they were to return with their children,
and they cannot rely on mere speculation or assertions of possible persecution to support their claim.
The Board properly upheld the IJ’s denial of withholding of removal because the Lius failed
to meet their burden of showing a clear probability that they would be subjected to persecution if
removed to China with their children. Moreover, based on this same evidence, they have failed to
meet their burden for relief under the Convention Against Torture. See Khozhaynova, 641 F.3d at
197.
The petition for review is denied.