Opinion
Nos. 04-6039-ag (L); 05-2686-ag (con) NAC.
October 5, 2007.
UPON DUE CONSIDERATION of this consolidated petition for review of two decisions by the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
FOR PETITIONERS: Douglas B. Payne, New York, New York. FOR RESPONDENTS: David L. Huber, United States Attorney for the Western District of Kentucky, John E. Kuhn, Jr., Assistant United States Attorney, Louisville, Kentucky.
PRESENT: HON. PIERRE N. LEVAL, HON. GUIDO CALABRESI, HON. DEBRA ANN LIVINGSTON, Circuit Judges.
Petitioners Chen Quin Liu and Xiao Yun Lin, citizens of the People's Republic of China, seek review of orders by the BIA issued on October 21, 2004 and May 9, 2005, affirming the July 8, 2003 decision of Immigration Judge ("IJ") Annette S. Elstein, denying Liu's applications for asylum and withholding of deportation, and Lin's applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Chen Quin Liu, No. A70 890 754 (B.I.A. Oct. 21, 2004) and In re Xiao Yun Lin, No. 78 216 592 (B.I.A. May 9, 2005) aff'g Nos. A70 890 754 (Immig. Ct. N.Y. City July 8, 2003) and A78 216 592 (Immig. Ct. N.Y. City July 8, 2003). We assume the parties' familiarity with the underlying facts and procedural history of the case.
When the BIA summarily affirms the decision of the IJ without issuing an opinion, we review the IJ's decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). We review legal questions and applications of law to fact de novo. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003). We review the agency's factual findings, including credibility determinations, under the substantial evidence standard, treating them as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see Zhou Yun Zhang v. INS, 386 F.3d 66, 73 n. 7 (2d Cir. 2004), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep't of Justice, 499 F.3d 296, 305 (2d Cir. 2006). However, we will vacate and remand for new findings if the agency's reasoning or its fact-15 finding process was sufficiently flawed. Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 406 (2d Cir. 2005).
We find that substantial evidence supports the IJ's determination that neither Liu nor Lin demonstrated past persecution. Petitioner Liu admitted that he had no problems with the family planning authorities himself, and we agree that Lin's experiences in China — forced study sessions and physical examinations — did not amount to persecution. See Ai Feng Yuan v. U.S. Dep't of Justice, 416 F.3d 192, 198 (2d Cir. 2005), overruled in part on other grounds by Shi Liang Lin, 499 F.3d at 305. Moreover, the IJ reasonably relied on the country reports to determine that because Liu and Lin currently had only one child, and that child was female, they were not presently in violation of the family planning policy, and might even be permitted to have a second child. While information in State Department reports does not irrefutably undermine contrary evidence presented by an applicant, see Tian-Yong Chen v. INS, 359 F.3d 121, 130 (2d Cir. 2004), we have consistently found that an IJ may rely on such reports for general information about country conditions and policies to assist in evaluating the plausibility of an applicant's claim. See, e.g., Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006). Here, the State Department Asylum Profile indicates that, in the Fujian Province, a second child is permitted if the first was female and the parents wait for four years between children.
In addition, Lin and Liu offered no evidence to support their claim that because Lin had signed a "Marriage and Birth Giving Covenant for Unmarried Youths" in 1995, promising not to marry without permission or have children before marriage, Lin would be subject to, or in violation of, its terms when she was neither unmarried nor a youth when she had her first child. Assuming arguendo that the document is genuine, the IJ reasonably concluded that both Lin and Liu failed to demonstrate that its provisions would be enforced, or even that they had violated the terms of the covenant. Lin stated that she had heard of a woman in her village who had violated the contract, but did not state what had happened to her. She also listed a variety of punishments that either had happened or might happen to people who violated the birth control policy, but not necessarily those who broke their covenants.
Additionally, Liu made contradictory statements about whether or not he and Lin would be able to have a second child after waiting four years, or whether Lin's violation already foreclosed all possibilities of registering their first child, much less having a second. Under these circumstances, the IJ properly denied both Lin's and Liu's claims of well-founded fear as speculative. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005). Furthermore, because the Petitioners' withholding claims were based on the same factual predicate as their asylum claims, the IJ reasonably denied their applications for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Finally, we lack jurisdiction to review any claim Liu or Lin may have had under the CAT, as they failed to exhaust any such claims before the BIA. See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).
_____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(d)(1).