Fagui Yan v. Holder ( 2012 )

11-217-ag
Yan v. Holder
BIA
Schoppert, IJ
A089 250 390
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 8th day of May, two thousand twelve.
PRESENT:
ROBERT D. SACK,
RICHARD C. WESLEY,
SUSAN L. CARNEY,
Circuit Judges.
______________________________________
FAGUI YAN,
Petitioner,
v. 11-217-ag
NAC
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Steven K. Frankel, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Susan K. Houser, Senior
Litigation Counsel, John J.W.
Inkeles, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DISMISSED in part, and DENIED in part.
Petitioner Fagui Yan, a native and citizen of China,
seeks review of a December 21, 2010 decision of the BIA
affirming the February 25, 2009 decision of Immigration
Judge (“IJ”) Douglas B. Schoppert, finding Yan’s application
for asylum to be untimely and denying his requests for
withholding of removal and relief under the Convention
Against Torture (“CAT”). In re Fagui Yan, No. A089 250 390
(B.I.A. Dec. 21, 2010), aff’g, No. A089 250 390 (Immig. Ct.
N.Y. City Feb. 25, 2009). We assume the parties’
familiarity with the underlying facts and procedural history
of the case.
We have reviewed the IJ’s decision as supplemented by
the BIA’s decision. See Yan Chen v. Gonzales, 417 F.3d 268,
271 (2d Cir. 2005). The applicable standards of review are
well-established. See 8 U.S.C. § 1252(b)(4); Yanqin Weng v.
Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Title 8, Section 1158(a)(3) of the United States Code
provides that no court shall have jurisdiction to review the
2
agency’s finding that an asylum application was untimely
under 8 U.S.C. § 1158(a)(2)(B), or its finding that there
were neither changed nor extraordinary circumstances
excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D).
While we retain jurisdiction under 8 U.S.C. § 1252(a)(2)(D)
to review constitutional claims and questions of law, Yan
has challenged only the agency’s factual determination that
he failed to demonstrate changed or extraordinary
circumstances relating to his eligibility for asylum.
Accordingly, we lack jurisdiction to review the denial of
asylum. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 329-31 (2d Cir. 2006) (holding that “we remain deprived
of jurisdiction to review decisions under the INA when the
petition for review essentially disputes the correctness of
an IJ’s fact-finding . . . and raises neither a
constitutional claim nor a question of law”).
As to the denial of withholding of removal, substantial
evidence supports the agency’s adverse credibility
determination. The IJ reasonably found that several aspects
of Yan’s testimony were implausible. See Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (holding that we
“defer . . . to an IJ’s credibility determination unless,
3
from the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse
credibility ruling”); Wensheng Yan v. Mukasey, 509 F.3d 63,
67 (2d Cir. 2007) (per curiam) (holding that we will not
disturb an IJ’s implausibility finding where it is “tethered
to record evidence, and there is nothing else in the record
from which a firm conviction of error could properly be
derived”). There is no merit to Yan’s contention that the
adverse credibility determination was unsupported because
the Government failed to discredit his claims, as he bore
the burden of proving his entitlement to relief. See 8
U.S.C. § 1231(b)(3)(C); 8 U.S.C. § 1158(b)(1)(B). Because
the agency found that Yan’s testimony that he had been
persecuted due to his religious activities in China was not
credible, its adverse credibility determination foreclosed
any argument that Yan could benefit from a presumption of a
future threat of persecution based on past persecution. 8
C.F.R. § 1208.16(b)(1).
Further, the agency reasonably found that he had failed
to demonstrate that his religious and political activities
in the United States would likely result in future
persecution in China. Although the IJ found that Yan had
4
testified credibly about his involvement in his church and
the pro-democracy movement in the United States, to meet his
burden of establishing a well-founded fear of persecution,
Yan was required to “make some showing that authorities in
[China] are either aware of his activities or likely to
become aware of his activities.” Hongsheng Leng v. Mukasey,
528 F.3d 135, 143 (2d Cir. 2008) (per curiam). To show that
the authorities were aware of his activities, Yan submitted
a letter from his wife stating that the police had
questioned her about Yan’s religious beliefs and warned her
that he should end his political involvement. However, the
IJ determined that this letter was entitled to little
weight, a finding Yan has not challenged on appeal; we
accordingly decline to disturb the IJ’s finding. See
Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7
(2d Cir. 2005) (providing that issues not sufficiently
argued in the briefs are considered waived and normally will
not be addressed on appeal).
Yan presented no other evidence that his activities in
this country would likely subject him to persecution in
China. In light of the absence of evidence that Chinese
authorities had become aware of Yan’s activities, would
5
become aware of his activities, or would subject him to
persecution as a result of these activities, substantial
evidence supports the agency’s denial of withholding of
removal.
For these same reasons, Yan has also failed to
demonstrate that he is likely to be tortured if removed to
China and is therefore ineligible for relief under the CAT.
See Kone v. Holder, 596 F.3d 141, 147 (2d Cir. 2010).
Accordingly, the petition for review is DISMISSED in
part and DENIED in part. As we have completed our review,
any stay of removal that the Court previously granted in
this petition is VACATED, and any pending motion for a stay
of removal in this petition is DISMISSED as moot. Any
pending request for oral argument in this petition is DENIED
in accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6