Yokoyama v. Holder , 571 F. App'x 12 ( 2014 )

13-711
Yokoyama v. Holder
BIA
Ferris, IJ
A088 445 387
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 25th day of June, two thousand fourteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 REENA RAGGI,
10 Circuit Judges.
11 _____________________________________
12
13 MICHI YOKOYAMA,
14 Petitioner,
15 13-711
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Matthew L. Guadagno, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Blair T. O’Connor,
28 Assistant Director; Juria L. Jones,
29 Trial Attorney, Office of
1 Immigration Litigation, Civil
2 Division, United States Department
3 of Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is GRANTED in part and DENIED in part.
9 Petitioner, Michi Yokoyama, a native and citizen of
10 Japan, seeks review of a January 30, 2013, decision of the
11 BIA affirming the July 10, 2012, decision of Immigration
12 Judge (“IJ”) Noel A. Ferris denying her application for
13 asylum, withholding of removal, and relief under the
14 Convention Against Torture (“CAT”). In re Michi Yokoyama,
15 No. A088 445 387 (B.I.A. Jan. 30, 2013), aff’g No. A088 445
16 387 (Immig. Ct. N.Y. City July 10, 2012). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history of the case.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decision as supplemented by the BIA. See Yan Chen
21 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
22 applicable standards of review are well-established. See
23 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
24 510, 513 (2d Cir. 2009).
2
1 I. Asylum and Withholding of Removal
2 The BIA affirmed the IJ’s denial of asylum and
3 withholding of removal based on: Yokoyama’s failure to
4 establish a well-founded fear of persecution on account of
5 her membership in a particular social group and also applied
6 the serious nonpolitical crime bar to relief, which rendered
7 her statutorily ineligible for relief. Both conclusions are
8 flawed and require remand.
9 A. Serious Nonpolitical Crime Bar
10 The BIA found that Yokoyama’s embezzlement charges gave
11 sufficient cause to believe that she had committed a serious
12 nonpolitical crime and she failed to rebut the presumption
13 that the bar applied. The BIA’s application of the bar
14 without notice to Yokoyama constitutes error.
15 Asylum and withholding of removal under 8 U.S.C.
16 § 1231(b)(3) and the CAT are unavailable if “there are
17 serious reasons [i.e., probable cause] for believing that
18 the [applicant] has committed a serious nonpolitical crime
19 outside the United States prior to [her] arrival [] in the
20 United States.” 8 U.S.C. § 1158(b)(2)(A)(iii); see also
21 8 U.S.C. § 1231(b)(3)(B)(iii); 8 C.F.R. § 1208.16(d)(2); Guo
22 Qi Wang v. Holder, 583 F.3d 86, 90 (2d Cir. 2009) (equating
3
1 “serious reasons for believing” to probable cause). Once
2 the agency has determined that a statutory bar may apply,
3 the applicant shall have the burden of proving by a
4 preponderance of evidence that such grounds do not apply.
5 See 8 C.F.R. §§ 1240.8(d), 1208.13(c)(2)(ii), 1208.16(d)(2).
6 The agency is then required, as a matter of due process, to
7 give the applicant the opportunity to rebut the presumptive
8 application of the bar. See Monter v. Gonzalez, 430 F.3d
9 546, 552 (2d Cir. 2005) (finding that BIA’s conclusion that
10 the applicant materially misrepresented facts was premature
11 and erroneous due to both its and the IJ’s failure to give
12 the applicant the opportunity to rebut the presumption of
13 removability based on the misrepresentation).
14 Here, the IJ did not address the bar at all and
15 consequently did not put Yokoyama on notice that the she
16 bore the burden to show that it did not apply. See Monter,
17 430 F.3d at 552. Although Yokoyama declined to discuss the
18 charges against her, asserting the Fifth Amendment right
19 against self-incrimination, she had no notice that her
20 failure to testify regarding the charges would result in the
21 application of the bar and render her statutorily ineligible
22 for relief. Thus, the BIA’s application of the bar violated
4
1 her due process rights. See id.; see also Li Hua Lin v.
2 U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006)
3 (noting that due process “requires that an applicant receive
4 a full and fair hearing which provides a meaningful
5 opportunity to be heard”).
6 B. Persecution and Nexus Findings
7 Yokoyama contends that she established a well-founded
8 fear of future persecution on account of her membership in
9 two social groups: assertive, Americanized Japanese women
10 and female detainees in Japan. However, the BIA failed to
11 sufficiently address these claims.
12 When an alien does not rely on a claim of past
13 persecution, she must demonstrate that there is an
14 objectively reasonable basis for fearing that she will be
15 persecuted on account of a protected ground, which includes
16 a particular social group. See 8 U.S.C. §§ 1101(a)(42),
17 1231(b)(3)(A). To the extent Yokoyama argues that the
18 Japanese government will persecute her on account of the
19 fact that she is charged with embezzlement, her argument is
20 unavailing, as the embezzlement prosecution is not
21 pretextual and it constitutes a valid state action, not
22 persecution. See Saleh v. U.S. Dep’t of Justice, 962 F.2d
5
 1 234, 239 (2d Cir. 1992). For the same reasons, the IJ
2 reasonably found that Yokoyama cannot establish a particular
3 social group based on her suspected criminal activity. See
4 id. at 240; Matter of E-A-G-, 24 I. & N. Dec. 591, 596 (BIA
5 2007) (“Treating affiliation with a criminal organization as
6 being protected membership in a social group is inconsistent
7 with the principles underlying the bars to asylum and
8 withholding of removal based on criminal behavior.”).
9 The BIA did not, however, address whether “Americanized
10 women who express their opinions” or “women accused of
11 crimes in Japan,” i.e. female detainees, constitute
12 particular social groups, or whether Yokoyama has a well
13 founded fear of harm as a member of those grounds. In order
14 to establish asylum eligibility based on membership in a
15 particular social group, the alien must establish that the
16 group itself was cognizable, meaning that it: (1) exhibits a
17 shared characteristic that is socially visible to others in
18 the community; and (2) is defined with sufficient
19 particularity. See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73
20 (2d Cir. 2007). Although the BIA stated that Yokoyama did
21 not establish her membership in a particular social group,
22 it did so only in regard to her argument that she would be
6
1 persecuted as a suspected criminal. Thus, the agency must
2 determine in the first instance whether she has established
3 that she is a member of the particular social group fo
4 purposes of the INA, and whether she has a well founded fear
5 of future persecution. See Beskovic v. Gonzales, 467 F.3d
6 223, 227 (2d Cir. 2006) (requiring a certain minimal level
7 of analysis from agency decisions denying asylum to enable
8 meaningful judicial review).
9 Because both bases for the agency’s denial of asylum
10 and withholding of removal are flawed, remand to consider
11 these issues would not be futile. See Alam v. Gonzales, 438
12 F.3d 184, 187-88 (2d Cir. 2006).
13 II. CAT Relief
14 Substantial evidence supports the agency’s finding that
15 Yokoyama did not establish a likelihood that she would be
16 tortured in Japan. To demonstrate eligibility for CAT
17 relief, an applicant must show that she would more likely
18 than not be tortured. See 8 C.F.R. §§ 1208.16(c), 1208.17;
19 Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004). Not
20 all harm rises to the level of torture; rather, it is an
21 “extreme form of cruel and inhuman treatment,” 8 C.F.R.
22 § 208.18(a)(2)), which does not include “pain or suffering
7
1 arising only from, inherent in or incidental to lawful
2 sanctions,” id. § 1208.18(a)(3).
3 Yokoyama argues that the pretrial confinement and
4 interrogation she will inevitably face in Japan constitute
5 torture. While a 2011 Report notes that Japanese prisons
6 often were overcrowded and failed to provide adequate
7 heating, even deplorable prison conditions do not constitute
8 torture absent evidence of intent to torture. See Pierre v.
9 Gonzales, 502 F.3d 109, 121 (2d Cir. 2007). Although
10 criminal defendants in Japan may be held in pretrial
11 detention for up to 23 days and may be subjected to unlawful
12 questioning techniques, such as being handcuffed to a chair
13 during a prolonged interrogation, and offered bail in
14 exchange for a confession, those acts do not involve the
15 “infliction or threatened infliction of severe physical [or
16 mental] pain or suffering,” 8 C.F.R. § 1208.18(a)(4)(i); see
17 also id. § 1208.18(a)(5). The agency therefore reasonably
18 found that Yokoyama did not demonstrate that her pretrial
19 detention or, if convicted, imprisonment would constitute
20 torture. See Khouzam, 361 F.3d at 171.
21 For the foregoing reasons, the petition for review is
22 GRANTED to the extent it challenges the denial of asylum and
8
1 withholding of removal and DENIED in regards to the denial
2 of CAT relief. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
9