Yu Yong Zhu v. Holder , 356 F. App'x 479 ( 2009 )

08-5117-ag (L); 09-0273-ag (Con)
Zhu v. Holder
BIA
McManus, IJ
A 098 355 930
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 14 th day of December, two thousand nine.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROGER J. MINER,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 ______________________________________
13
14 YU YONG ZHU,
15 Petitioner,
16
17 v. 08-5117-ag (L);
18 09-0273-ag (Con)
19 NAC
20 ERIC H. HOLDER, JR., ATTORNEY GENERAL, *
21 Respondent.
22
23 ______________________________________
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Alexander Kwok-Ho Yu, New York, New
2 York.
3
4 FOR RESPONDENT: Tony West, Assistant Attorney
5 General; James A. Hunolt, Senior
6 Litigation Counsel; Patrick J. Glen,
7 Trial Attorney, United States
8 Department of Justice, Office of
9 Immigration Litigation, Washington,
10 D.C.
1112 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED that the petition for review
15 is DENIED.
16 Petitioner Yu Yong Zhu, a native and citizen of China,
17 seeks review of a September 18, 2008 order of the BIA
18 reversing the March 22, 2007 decision of Immigration Judge
19 (“IJ”) Margaret McManus granting Zhu’s application for
20 asylum. In re Yu Yong Zhu, No. A 098 355 930 (B.I.A. Sept.
21 18, 2008), rev’g No. A 098 355 930 (Immig. Ct. N.Y. City
22 Mar. 22, 2007). Additionally, Zhu seeks review of a
23 December 19, 2008 order of the BIA denying his motion to
24 reconsider its September 2008 order. In re Yu Yong Zhu, No.
25 A 098 355 930 (B.I.A. Dec. 19, 2008). We assume the
26 parties’ familiarity with the underlying facts and
27 procedural history of the case.
28 I. Dkt. No. 08-5117-ag (L): The BIA’s September 2008 Order
29 When the BIA does not adopt the decision of the IJ to
2
1 any extent, this Court reviews only the decision of the BIA.
2 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
3 We review the BIA’s factual findings under the substantial
4 evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also
5 Manzur v. DHS, 494 F.3d 281, 289 (2d Cir. 2007). We review
6 de novo questions of law and the application of law to
7 undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99,
8 110 (2d Cir. 2008).
9 As a preliminary matter, we note that Zhu failed to
10 exhaust his claims for withholding of removal and CAT relief
11 by not raising those claims before the BIA. See
12 Theodoropoulos v. I.N.S., 358 F.3d 162, 171 (2d Cir. 2004)
13 (“[A]t least one of the purposes served by the exhaustion
14 requirement contained in § 1252(d) is to ensure that the
15 INS, as the agency responsible for construing and applying
16 the immigration laws and implementing regulations, has had a
17 full opportunity to consider a petitioner's claims before
18 they are submitted for review by a federal court.”). Thus,
19 to the extent he raises those claims in this Court, we lack
20 jurisdiction to review his arguments. See 8 U.S.C.
21 § 1252(d)(1).
22 Zhu contends that the BIA erred in finding that he had
3
1 not established his membership in a particular social group
2 for purposes of asylum eligibility. See 8 U.S.C.
3 § 1101(a)(42). He argues that the BIA failed to take into
4 account his prior detention and mistreatment in defining his
5 social group, instead focusing solely on his fear of future
6 persecution.
7 First, the BIA clearly considered Zhu’s past experience
8 in its decision, noting that Zhu “was previously detained
9 and beaten by Chinese authorities when he was returned after
10 a failed smuggling attempt in September 1999.” Cf. Vumi v.
11 Gonzales, 502 F.3d 150, 155 (2d Cir. 2007) (remanding
12 because the agency failed to consider petitioner’s claim
13 that family members can constitute a particular social
14 group). Second, a social group cannot be defined
15 exclusively by the fact that its members have been subject
16 to past harm. Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d
17 Cir. 2007); see also Koudriachova v. Gonzales, 490 F.3d 255,
18 261 (2d Cir. 2007) (“[N]ot all applicants who can point to
19 membership in some group united by a shared past experience
20 will qualify for asylum.”). Therefore, the BIA did not err
21 in denying Zhu’s application for asylum. Manzur, 494 F.3d
22 at 289.
4
1 II. Dkt. No. 09-0273-ag (Con): The BIA’s December 2008
2 Order
3 We review the BIA’s denial of a motion to reopen or
4 reconsider for abuse of discretion. See Kaur v. BIA, 413
5 F.3d 232, 233 (2d Cir. 2005) (per curiam); Jin Ming Liu v.
6 Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (per curiam). An
7 abuse of discretion may be found where the BIA’s decision
8 “provides no rational explanation, inexplicably departs from
9 established policies, is devoid of any reasoning, or
10 contains only summary or conclusory statements; that is to
11 say, where the Board has acted in an arbitrary or capricious
12 manner.” Kaur, 413 F.3d at 233-34 (internal quotation marks
13 omitted); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d
14 83, 93 (2d Cir. 2001).
15 The BIA did not abuse its discretion in denying Zhu’s
16 motion to reconsider. Although Zhu argues that in defining
17 his social group the BIA erred by focusing solely on his
18 fear of future persecution and ignoring evidence of his
19 prior detention and mistreatment at the hands of the Chinese
20 government, the BIA stated in its decision that it defined
21 the group as “those persons who have already been punished
22 for a prior departure and now face forcible return after a
23 subsequent illegal departure.” The BIA supported its
5
1 decision with a rational and reasoned analysis, finding that
2 Zhu still failed to establish eligibility for asylum
3 because: (1) the group lacked the required “social
4 visibility”; (2) members did not share a “common, immutable
5 characteristic”; and (3) the mistreatment Zhu feared did not
6 rise to the level of persecution. Therefore, the BIA did
7 not abuse its discretion in denying Zhu’s motion to
8 reconsider. Ke Zhen Zhao, 265 F.3d at 93.
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any pending motion
11 for a stay of removal in this petition is DISMISSED as moot.
12 Any pending request for oral argument in this petition is
13 DENIED in accordance with Federal Rule of Appellate
14 Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
19 By:___________________________
6