10-569-ag Liu v. Holder BIA Nelson, IJ A094 824 987 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 17th day of February, two thousand eleven. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 PETER W. HALL, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _______________________________________ 12 13 XIAOBIN LIU, 14 Petitioner, 15 16 v. 10-569-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: Nathan Weill, New York, New York. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General; Keith I. McManus, Senior 27 Litigation Counsel; Timothy G. 28 Hayes, Trial Attorney, 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 Xiaobin Liu, a native and citizen of China, seeks

6 review of a January 20, 2010, decision of the BIA affirming

7 the March 12, 2008, decision of Immigration Judge (“IJ”)

8 Barbara A. Nelson, which denied her application for asylum,

9 withholding of removal, and relief under the Convention

10 Against Torture (“CAT”). In re Xiaobin Liu, No. A094 824

11 987 (B.I.A. Jan. 20, 2010), aff’g No. A094 824 987 (Immig.

12 Ct. N.Y. City Mar. 12, 2008). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 in this case.

15 Under the circumstances of this case, we review the

16 decision of the IJ as supplemented by the BIA. See Yan Chen

17 v. Gonzales,

(2d Cir. 2005). The

18 applicable standards of review are well-established.

19 See

(b)(4)(B); see also Salimatou Bah v.

20 Mukasey,

(2d Cir. 2008); Manzur v. DHS,

21

(2d Cir. 2007).

22 Title 8, Section 1158(a)(3) of the United States Code

23 provides that no court shall have jurisdiction to review the

2 1 agency’s finding that an asylum application was untimely

2 under

(a)(2)(B), or its finding of neither

3 changed nor extraordinary circumstances excusing the

4 untimeliness under

(a)(2)(D).

5 Notwithstanding that provision, however, we retain

6 jurisdiction to review constitutional claims and “questions

7 of law.”

(a)(2)(D). In order to determine

8 whether jurisdiction exists in an individual case, we “study

9 the arguments asserted” in a petition for review and

10 determine, “regardless of the rhetoric employed in the

11 petition, whether it merely quarrels over the correctness of

12 the factual findings or justification for the discretionary

13 choices, in which case the court would lack jurisdiction, or

14 whether it instead raises a ‘constitutional claim’ or

15 ‘question of law,’” in which case those particular issues

16 could be addressed. Xiao Ji Chen v. U.S. Dep’t of Justice,

17

(2d Cir. 2006). Here, we lack

18 jurisdiction to review the denial of Liu’s asylum

19 application as untimely because Liu has challenged only

20 purely factual determinations and the agency’s exercise of

21 discretion.

22 Liu argues that the agency erred as a matter of law in

3 1 determining that credible testimony alone, without

2 corroboration, cannot establish, by clear and convincing

3 evidence, that an asylum application was filed within one

4 year of entry into the United States. Here, however, the

5 agency did not declare as a matter of law that an

6 individual’s testimony alone is not enough to establish date

7 of entry. Rather, the agency found that, based on the lack

8 of credible detail and consistency in Liu’s testimony

9 regarding her trip to the United States, Liu did not

10 demonstrate, by clear and convincing evidence, her date of

11 entry into the United States. This finding by the agency

12 was a factual determination regarding the timeliness of

13 Liu’s asylum application, which we lack jurisdiction to

14 review. See

(a), Xiao Ji Chen,

323-32.

16 Liu also argues that her constitutional due process

17 rights were violated when the IJ declined to grant her a

18 continuance in order to present a witness who could testify

19 as to her date of entry into the United States. However,

20 “[a] petitioner may not create the jurisdiction that

21 Congress chose to remove simply by cloaking an abuse of

22 discretion argument in constitutional garb.” Saloum v. U.S.

4 1 CIS,

, 243 (2d Cir. 2006) (quoting Torres-

2 Aguilar v. INS,

(9th Cir. 2001)); see

3 also Xiao Ji Chen,

. Indeed, “[t]o hold

4 otherwise would allow all [petitioners] ... to circumvent

5 clear congressional intent to eliminate judicial review over

6 discretionary decisions through the facile device of re-

7 characterizing an alleged abuse of discretion as a ‘due

8 process’ violation.” Saloum, 437 F.3d at 243-44 (quoting

9 Torres-Aguilar,

). Here, Liu has not raised

10 a colorable constitutional claim by contending that the IJ

11 violated her due process rights, as she is simply re-

12 characterizing an allegation that the IJ abused her

13 discretion as a constitutional issue.*

14 Liu further contends that the IJ abused her discretion

15 in denying a continuance. Immigration Judges have the

16 authority to grant continuances “for good cause shown.”

17

. We review the BIA’s affirmance of an

* Even if Liu did raise a colorable constitutional claim that we have jurisdiction to review, her right to due process was not violated, as Liu had ample opportunity to introduce corroborative evidence regarding her arrival date. See Li Hua Lin v. U.S. Dep’t of Justice,

(2d Cir. 2006) (holding that there is no due process violation where the IJ’s finding was not arbitrary and the alien was not denied a full and fair opportunity to present her claims). 5 1 IJ’s decision to deny a motion for a continuance for abuse

2 of discretion. See Kulwinder Singh v. U.S. DHS,

72, 81 (2d Cir. 2008); Sanusi v. Gonzales,

, 199

4 (2d Cir. 2006). We have noted that IJs have “broad

5 discretion” and “are accorded wide latitude in calendar

6 management.” Morgan v. Gonzales,

(2d Cir.

7 2006)(citation omitted). An IJ abuses his discretion in

8 denying a continuance only “if (1) his decision rests on an

9 error of law (such as application of the wrong legal

10 principle) or a clearly erroneous factual finding or (2) his

11 decision – though not necessarily the product of a legal

12 error or a clearly erroneous factual finding – cannot be

13 located within the range of permissible decisions.”

at

14 551-52 (citations, internal quotation marks, and alterations

15 omitted). In this case, the IJ did not abuse her discretion

16 in denying the continuance, as Liu had ample opportunity to

17 introduce corroborative evidence regarding her arrival date.

18

19 Because Liu has failed to present any constitutional

20 claim or question of law related to the agency’s finding

21 that her application was untimely, Xiao Ji Chen,

323-32, we lack jurisdiction to review the IJ’s denial of

23 her asylum claim, see

(a). We may, however, 6 1 review Liu’s challenge to the agency’s denial of withholding

2 of removal.

3 In 1996, Congress amended the definition of “refugee”

4 to include “a person who has been forced to abort a

5 pregnancy or to undergo involuntary sterilization, or who

6 has been persecuted for failure or refusal to undergo such a

7 procedure or for other resistance to a coercive population

8 control program, . . . and a person who has a well founded

9 fear that he or she will be forced to undergo such a

10 procedure or subject to persecution for such failure,

11 refusal, or resistance.”

(a)(42). The BIA

12 has held that Congress did not intend to include in this

13 definition the involuntary insertion of an IUD as a per se

14 form of persecution. See Matter of M-F-W- & L-G-, 24 I. &

15 N. Dec. 633, 636 (B.I.A. 2008). Liu first challenges the

16 BIA’s determination in Matter of M-F-W- & L-G- that an

17 involuntary IUD insertion does not amount to persecution

18 absent “aggravating circumstances.”

. We

19 recently rejected this exact argument, however, holding that

20 the BIA’s interpretation of the Immigration and Nationality

21 Act to conclude that an involuntary IUD insertion is not per

22 se grounds for asylum was entitled to deference. Xia Fan

23 Huang v. Holder,

(2d Cir. 2010).

7 1 Therefore, in order to constitute persecution, an IUD

2 insertion must involve aggravating circumstances and occur

3 as a result of the applicant’s resistance to the family

4 planning policy.

.

5 Liu further argues that even if involuntary IUD

6 insertion does not amount to per se persecution, the agency

7 erred in concluding that her forcible IUD insertion did not

8 rise to the level of persecution. However, the BIA did not

9 err in finding that the circumstances surrounding Liu’s

10 unwilling IUD insertion did not rise to the level of harm

11 required to establish persecution. In her hearing at the

12 immigration court, Liu testified that the IUD resulted in

13 pain in her abdomen, bleeding, and ultimately, an infection.

14 She stated that she asked the family planning officials to

15 remove the IUD, but was refused and given medicine to

16 address her infection, from which she eventually recovered.

17 While these circumstances are unfortunate, they do not

18 constitute the “aggravating circumstances” necessary for the

19 harm Liu suffered to rise to the level of persecution. See

20 M-F-W- & L-G-, 24 I. & N. Dec. at 641-42 (providing that

21 “examples of routine acts implementing China’s family

22 planning policy that are lacking in harm sufficient to

23 constitute persecution include reinsertion of an IUD after

8 1 the removal of an IUD, fines for having removed the IUD that

2 are not excessive, regularly required gynecological exams,

3 and other routine fines and threats for disobeying the

4 policy”).

5 Because the agency reasonably concluded that Liu did

6 not suffer past persecution, she is not entitled to a

7 presumption of future persecution. See 8 C.F.R.

8 § 208.16(b)(1). Furthermore, in her brief, Liu does not

9 raise the issue of future persecution, and makes no argument

10 regarding the likelihood of persecution if she returns to

11 China. Accordingly, we decline to address the issue.

12 Yueqing Zhang v. Gonzales,

, 541 n.1, 545 n.7

13 (2d Cir. 2005); LNC Invs., Inc. v. Nat’l Westminster Bank,

F.3d 169, 176 n.8 (2d Cir. 2002). Because Liu

15 failed to establish past persecution, and fails to argue

16 that she would be persecuted if she were to return to China,

17 we conclude that the agency did not err in denying her

18 application for withholding of removal. See 8 C.F.R.

19 § 1208.16(b).

20 For the foregoing reasons, the petition for review is

21 DENIED. As we have completed our review, any stay of

22 removal that the Court previously granted in this petition

23 is VACATED, and any pending motion for a stay of removal in

9 1 this petition is DISMISSED as moot. Any pending request for

2 oral argument in this petition is DENIED in accordance with

3 Federal Rule of Appellate Procedure 34(a)(2), and Second

4 Circuit Local Rule 34.1(b).

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 8

10