Rui Guo v. Lynch ( 2016 )

15-2794
Guo v. Lynch
BIA
Poczter, IJ
A205 445 965
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 9th day of November, two thousand sixteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 PETER W. HALL,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 RUI GUO,
15 Petitioner,
16
17 v. 15-2794
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Keith S. Barnett, New York, N.Y.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Attorney General; Linda S. Wernery,
28 Assistant Director; Matthew M.
29 Downer, Trial Attorney; Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 is
4 DENIED.
5 Petitioner Rui Guo, a native and citizen of the People’s
6 Republic of China, seeks review of an August 21, 2015, decision
7 of the BIA affirming an April 15, 2014, decision of an
8 Immigration Judge (“IJ”) denying Guo’s application for asylum,
9 withholding of removal, and relief under the Convention Against
10 Torture (“CAT”). In re Rui Guo, No. A205 445 965 (B.I.A. Aug.
11 21, 2015), aff’g No. A205 445 965 (Immig. Ct. N.Y. City Apr.
12 15, 2014). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed the
15 IJ’s and BIA’s decisions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
19 Holder, 562 F.3d 510, 513 (2d Cir. 2009). Guo challenges only
20 the denial of asylum, and the sole issue before us is whether
21 the agency correctly concluded that Guo failed to show that he
2
1 was persecuted on account of his political opinion. We review
2 that determination for substantial evidence. Edimo-Doualla v.
3 Gonzales, 464 F.3d 276, 281-83 (2d Cir. 2006) (applying
4 substantial evidence standard to nexus determination).
5 To obtain asylum or withholding of removal, Guo had to
6 demonstrate that his actual or imputed political opinion was
7 “at least one central reason” for his persecution. 8 U.S.C.
8 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A); Matter of C-T-L-, 25 I. &
9 N. Dec. 341, 348 (BIA 2010). It is undisputed that “opposition
10 to government corruption may constitute a political opinion,
11 and retaliation against someone for expressing that opinion may
12 amount to political persecution.” Castro v. Holder, 597 F.3d
13 93, 100 (2d Cir. 2010).
14 Although retaliation for whistleblowing can satisfy the
15 nexus requirement in some circumstances, it does not do so here.
16 To determine whether a whistleblower has shown harm on account
17 of political opinion, the agency considers (1) “whether and to
18 what extent the alien engaged in activities that could be
19 perceived as expressions of anticorruption beliefs,” (2) “any
20 direct or circumstantial evidence that the alleged persecutor
21 was motivated by the alien’s perceived or actual anticorruption
3
1 beliefs,” and (3) “evidence regarding the pervasiveness of
2 government corruption, as well as whether there are direct ties
3 between corrupt elements and higher level officials.” Matter
4 of N-M-, 25 I. & N. Dec. 526, 532-33 (B.I.A. 2011). The
5 important questions are “whether the applicant’s actions were
6 directed toward a governing institution, or only against
7 individuals whose conduct was aberrational”, and “whether the
8 persecutor was attempting to suppress a challenge to the
9 governing institution, as opposed to a challenge to isolated,
10 aberrational acts of greed or malfeasance.” Yueqing Zhang v.
11 Gonzales, 426 F.3d 540, 548 (2d Cir. 2005) (citation and
12 internal quotation marks omitted).
13 Here, the agency applied the test articulated in Matter of
14 N-M-, and its conclusion that Guo failed to show a nexus to any
15 political opinion is supported by substantial evidence. Guo
16 testified that he was acting pursuant to his job duties and out
17 of a concern for the company’s investors when he confronted his
18 manager and reported him to the internal investigations unit.
19 And apart from the dispute with his manager, he did not identify
20 other instances when he spoke out against insider trading or
21 corruption generally. Nor did he engage in traditional
4
1 political activities such as organizing coworkers, publishing
2 articles, or otherwise publicly denouncing his manager’s
3 insider trading and corruption. See Matter of N-M-, 25 I. &
4 N. Dec. at 532 (“[A]n Immigration Judge may consider whether
5 an alien denounced corruption in public or at work, published
6 articles criticizing government corruption, or organized ...
7 against this behavior.”). Accordingly, the record as a whole
8 supports the agency’s conclusion that Guo did not express an
9 anti-corruption political opinion in confronting his manager
10 or reporting the manager’s insider trading.
11 As to the second consideration, the agency reasonably
12 determined that the manager’s retaliation was personal rather
13 than political, noting that Guo himself characterized his
14 manager’s retaliatory acts as “personal revenge.” See Matter
15 of N-M-, 25 I. & N. at 531-32 (suggesting that where the alleged
16 persecutor acts “solely out of personal revenge or a desire to
17 avoid the exposure of a lucrative scheme of corruption, without
18 a significant concern about the alien’s political beliefs,
19 perceived or otherwise,” the claim cannot satisfy the nexus
20 requirement).
21 The last question is whether the corruption the applicant
5
1 opposed is “aberrational” or “endemic” – that is, whether the
2 applicant challenged a governing institution, or the actions
3 of an individual or a small group of “rogue officials.” Matter
4 of N-M-, 25 I. & N. at 533; see also Yueqing Zhang, 426 F.3d
5 at 547-48. The agency reasonably concluded that Guo opposed
6 only aberrational acts of his manager. Guo testified that his
7 company had installed special software allowing him to detect
8 the manager’s insider trading as part of an effort to combat
9 this type of illegal activity. And Guo presented no evidence
10 or testimony that the police officers were aware they were
11 arresting him on false accusations. Guo’s argument that the
12 company’s efforts to detect and prevent insider trading were
13 a “ruse” because no action was taken against his manager has
14 little support in the record. The only evidence is his
15 testimony that the internal investigations unit did not respond
16 to his email within the short time before he was fired. Guo
17 did not testify regarding any other acts of insider trading or
18 general corruption within his company.
19 On this record, substantial evidence supports the agency’s
20 determination that Guo failed to meet his burden of proof in
21 demonstrating nexus. Edimo-Doualla, 464 F.3d at 281-83.
6
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, the pending motion
3 for a stay of removal in this petition is DISMISSED as moot.
4 FOR THE COURT:
5 Catherine O=Hagan Wolfe, Clerk
7