Opinion
No. 07-1983-ag NAC.
January 3, 2008.
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.
FOR PETITIONER: Lin Li, Law Office of Fengling Liu, New York, N.Y. FOR RESPONDENT: Peter D. Keisler, Asst. Atty. General; Blair T. O'Connor, Senior Litigation Counsel; Julie Pfluger, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
PRESENT: HON. JON O. NEWMAN, HON. GUIDO CALABRESI, HON. PETER W. HALL, Circuit Judges.
Qiao Jin Liu, a native and citizen of China, seeks review of an April 20, 2007 order of the BIA denying her motion to remand and affirming the October 28, 2005 decision of Immigration Judge ("IJ") Steven R. Abrams, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Qiao Jin Liu, No. A98 220 214 (B.I.A. Apr. 20, 2007), aff'g No. A98 220 214 (Immig. Ct. N.Y. City Oct. 28, 2005). We assume the parties' familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly "adopt" the IJ's decision, but its brief opinion closely tracks the IJ's reasoning, the Court may consider both the IJ's and the BIA's opinions for the sake of completeness if doing so does not affect the Court's ultimate conclusion. Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). This Court reviews the agency's factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., 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. Dept. of Justice, 494 F.3d 296, 305 (2d Cir. 2007). The Court reviews de novo questions of law and the application of law to undisputed fact. See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003).
Here, we find that the record supports the agency's determination that Liu failed to establish eligibility for asylum or withholding of removal. Before the agency, Liu asserted that she feared persecution for violating China's family planning policy. In light of the fact that Liu was unmarried and had no children at the time of her merits hearing, the IJ reasonably found her fear of persecution too speculative to be well-founded. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that "[i]n the absence of solid support in the record for [an applicant's] assertion that he will be [persecuted], his fear is speculative at best"). Accordingly, the agency did not err in finding that Liu failed to establish a well-founded fear of future persecution. As such, the agency reasonably denied Liu's asylum and withholding of removal claims. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (noting that a withholding claim necessarily fails if the applicant is unable to show the objective likelihood of persecution needed to make out an asylum claim).
Liu further challenges the agency's denial of her application for CAT relief, arguing that the background evidence in the record demonstrates that it is more likely than not that she will be tortured upon return to China on account of her illegal departure from that country. We have held that without any particularized evidence, an applicant cannot demonstrate that she is more likely than not to be tortured "based solely on the fact that she is part of the large class of persons who have left China illegally" and on generalized evidence indicating that torture occurs in Chinese prisons. Mu Xiang Lin v. U.S. Dep't of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005); see also Pierre v. Gonzales, 502 F.3d 109, 118-19 (2d Cir. 2007) (holding that beyond evidence of inhumane prison conditions, a CAT claimant must provide some evidence that the authorities act with the specific intent to inflict severe physical or mental pain or suffering on those detained).
Here, we find that substantial evidence supports the agency's denial of Liu's CAT claim. Liu provided no basis for the IJ to conclude that she, or someone in her "particular alleged circumstances," faces an elevated risk of persecution or torture. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 143-44 (2d Cir. 2003). Aside from Liu's assertion in her application that she had friends who "were once detained and heavily fined when they were sent back" and who were "mistreated in jail," Liu failed to provide the particularized evidence necessary to demonstrate eligibility for CAT relief. See Mu Xiang Lin, 432 F.3d at 160.
Finally, Liu challenges the BIA's denial of her motion to remand to the IJ for consideration of the fact that she was pregnant. We review the BIA's denial of a motion to remand for abuse of discretion. See Li Yong Cao v. U.S. Dep't of Justice, 421 F.3d 149, 157 (2d Cir. 2005). An abuse of discretion may be found where the BIA's decision "provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner." Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir. 2005); Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted). Although we have never required the BIA to "`expressly parse or refute on the record' each individual argument or piece of evidence offered by the petitioner," Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006), the BIA may abuse its discretion if it gives no indication that it considered "country conditions evidence submitted by an applicant that materially bears on his claim," Poradisova v. Gonzales, 420 F.3d 70, 81 (2d Cir. 2005); see also Zhi Yun Gao v. Mukasey, ___ F.3d ___, 2007 WL 4075825, at *1-2 (2d Cir. Nov. 19, 2007).
In this case, the BIA denied Liu's motion to remand, finding that Liu's claim for relief from removal remained speculative despite evidence that she was pregnant. However, in denying Liu's motion, the BIA appears to have completely ignored a State Department report and Congressional testimony from an interview with Gao Xiao Duan referenced in Liu's motion, both of which provided that single women who are pregnant without a birth permit may be forcibly aborted or sterilized. See Zhi Yun Gao, 2007 WL 4075825, at *1-2.
We have previously characterized this testimony as "detail[ed]" and based upon "personal knowledge." Cao He Lin, 428 F.3d at 403.
This error notwithstanding, remand would be futile. In her brief to this Court, Liu indicates that she suffered a miscarriage during the pregnancy that was the subject of her motion. Thus, her motion, in which she claimed a well-founded fear of having that pregnancy forcibly aborted, is now moot. See White River Amusement Pub, Inc. v. Hartford, 481 F.3d 163, 167 (2d Cir. 2007) (citations omitted) (providing that mootness imposes a "case-or-controversy requirement" that "subsists through all stages of federal judicial proceedings" and stating that "throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision"). Additionally, it is important to note that Liu's current pregnancy does not make remand any less futile as Liu indicates that she is now married and there is no evidence in the record that a married woman violates China's family planning policy by having one child.
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).