Bi Wu Liu v. Keisler

249 F. App'x 255

Opinion

SUMMARY ORDER

Bi Wu Liu, a citizen of China, petitions for review of the June 30, 2006 BIA decision affirming the April 29, 2005 decision of Immigration Judge (“IJ”) Adam Opaci-uch denying Liu’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Bi Wu Liu, No. A97-965-351 (B.I.A. June 30, 2006), affg No. A97-965-351 (Im-mig. Ct. N.Y. City Apr. 29, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

When the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the IJ’s decision. See Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir. 2005); Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003).

As a preliminary matter, we dismiss the petition for review as to Liu’s asylum claim. Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or the agency’s finding that the lateness is unexcused by changed or extraordinary circumstances under 8 U.S.C. § 1158(a)(2)(D). Notwithstanding that provision, however, this Court claims jurisdiction to review “constitutional claims” and “questions of law.” 8 U.S.C. (a)(2)(D). Liu’s arguments, which quarrel with the IJ’s purely factual determinations and the IJ’s exercise of discretion, raise no colorable constitutional claim or question of law. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.2006). Accordingly, we lack jurisdiction to review Liu’s asylum claim.

The untimeliness provisions of 8 U.S.C. § 1158(a)(2) do not apply to Liu’s withholding of removal claim; we therefore review the IJ’s decision as to that claim on the merits. This Court has recently determined that an alien who is the spouse, flaneé, or boyfriend of an individual who was forcibly sterilized does not automatically attain refugee status on that basis alone. See Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 300 (2d Cir.2007) (en banc). Absent proof of “other resistance” to coercive family planning policies or well-founded fear of future persecution on account of such resistance, such aliens are ineligible for asylum. Id. at 309-10. It is undisputed that Liu’s withholding of removal claim depends solely on his assertion that his wife was forcibly sterilized and not on the basis of any “other resistance” to coercive family planning policies. Therefore, he is ineligible for both asylum and withholding of removal.

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Because Liu has failed to sufficiently argue his CAT claim before this Court, and because addressing this argument does not appear to be necessary to avoid manifest injustice, any such argument is deemed waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir. 2005) (explaining that issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal).

For the foregoing reasons, the petition for review is hereby DENIED. The pending motion for a stay of removal in this petition is DISMISSED.

Judge Sotomayor continues to disagree with the majority opinion in Shi Liang Lin to the extent it applies beyond unmarried partners, see Shi Liang Lin, 494 F.3d at 327 (Sotoma-yor, J., concurring), but she is bound by court precedent, see United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir.2004).