Hong Mei Li v. Holder
Hong Mei Li v. Holder
Opinion
SUMMARY ORDER
Petitioner Hong Mei Li, a native and citizen of the People’s Republic of China, seeks review of an October 31, 2007, order of the BIA, denying her motion to remand and affirming the October 24, 2005, decision of Immigration Judge (“IJ”) Steven R. Abrams, denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Hong Mei Li, No. A097 485 231 (B.I.A. Oct. 31, 2007), aff'g No. A097 485 231 (Immig. Ct. N.Y. City Oct. 24, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
*20 I. Asylum and Withholding of Removal
Under the circumstances of this case, we review the IJ’s decision as modified by the BIA decision. Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Substantial evidence supports the IJ’s adverse credibility determination. The IJ based that determination, in part, on Li’s demeanor, finding that she “was at a loss” when asked questions that deviated from her asylum application. We accord particular deference to such assessments of an applicant’s demeanor. Majidi v. Gonzales, 430 F.3d 77, 81 n. 1. (2d Cir. 2005). The IJ further noted Li’s inconsistent testimony regarding the timing of her receipt of a fine certificate and who paid the fine. As the IJ found, although Li testified that she received the certificate at the hospital following her forced abortion, her asylum application and her mother’s letter state that she received it two days after her abortion. Moreover, although Li testified that her parents paid the fine, the certificate indicates that Li paid the fine. While minor and isolated discrepancies may be insufficient to support an adverse credibility determination, see Diallo v. INS, 232 F.3d 279, 288 (2d Cir. 2000), the multiple discrepancies here were not isolated or minor, and they relate to events at the heart of Li’s claim. The IJ also reasonably found it implausible that Li was unable to state her address in China because she lived there for thirteen years. See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir. 2007). Furthermore, the IJ did not err in declining to credit the explanations Li offered for these discrepancies. See Majidi, 430 F.3d at 80-81.
Accordingly, substantial evidence supports the agency’s adverse credibility determination. See 8 U.S.C. § 1158(b)(l)(B)(iii). Because the only evidence of a threat to Li’s life or freedom depended upon her credibility, the adverse credibility determination in this case necessarily precluded success on her claim for asylum and withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Li does not challenge the BIA’s denial of her application for CAT relief.
II. Motion to Remand
On appeal to the BIA, Li claimed to fear sterilization in China because she had four U.S. citizen children. The BIA construed that claim as a motion to remand, and denied it. We review the BIA’s denial of a motion to remand for abuse of discretion. Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir. 2005). A motion to remand that relies on newly available evidence is held to the substantive requirements of a motion to reopen. Id. at 156. The movant’s failure to submit previously unavailable material evidence or to establish a prima facie case for the underlying substantive relief sought are proper grounds on which the BIA may deny such a motion. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
The BIA reasonably found that Li could have presented her claim based on the birth of her children before the IJ. Indeed, at the time of the merits hearing, China’s Population and Family Planning Law had already been enacted and Li had already given birth to four U.S. citizen children. However, Li did not claim before the IJ that the birth of her children placed her in danger, arguing instead that she feared returning to China because of her illegal departure. Li offers no support for her conclusory assertion that such evidence was not available to her. Li’s fail *21 ure to make this claim before the IJ was alone a proper basis to deny her motion to remand. See id.
To the extent Li argued that country conditions had changed, the BIA did not abuse its discretion in refusing to remand on that basis. Contrary to Li’s argument, a reasonable fact-finder would not be compelled to conclude that the BIA ignored any material evidence that she submitted. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir. 2006). Moreover, the BIA did not err in finding that Li’s evidence did not indicate a material change in the law or in the implementation of China’s family planning policy because the evidence she submitted was the same or similar to that which this Court addressed in Jian Hui Shao. Accordingly, the BIA did not abuse its discretion in denying Li’s motion to remand. See Li Yong Cao, 421 F.3d at 156-57.
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 34.1(b).
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