Yun Cheng Wang v. Lynch ( 2016 )

15-2759
Wang v. Lynch
BIA
Poczter, IJ
A078 383 276
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 5th day of December, two thousand sixteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 RICHARD C. WESLEY,
10 PETER W. HALL,
11 Circuit Judges.
12 _____________________________________
13
14 YUN CHENG WANG,
15 Petitioner,
16
17 v. 15-2759
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Yee Ling Poon; Deborah Niedermeyer,
25 Law Office of Yee Ling Poon, LLC, New
26 York, New York.
27
28 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
29 Assistant Attorney General; Alison
30 M. Igoe, Senior Counsel for National
31 Security; Daniel I. Smulow, Counsel
1 for National Security, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Yun Cheng Wang, a native and citizen of the
11 People’s Republic of China, seeks review of an August 6, 2015,
12 decision of the BIA affirming a September 27, 2013, decision
13 of an Immigration Judge (“IJ”) denying Wang’s application for
14 asylum, withholding of removal, and relief under the Convention
15 Against Torture (“CAT”). In re Yun Cheng Wang, No. A078 383
16 276 (B.I.A. Aug. 6, 2015), aff’g No. A078 383 276 (Immig. Ct.
17 N.Y. City Sept. 27, 2013). We assume the parties’ familiarity
18 with the underlying facts and procedural history in this case.
19 We have reviewed both the IJ’s and the BIA’s opinions “for
20 the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528
21 (2d Cir. 2006). The applicable standards of review are well
22 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
23 Holder, 562 F.3d 510, 513 (2d Cir. 2009). Because Wang’s brief
2
1 does not challenge the agency’s denial of CAT deferral or
2 reopening, we review only the agency’s conclusion that Wang’s
3 acts as a driver for Chinese family planning officials bar him
4 from asylum and withholding of removal. See Yueqing Zhang v.
5 Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir. 2005). We conclude
6 that the persecutor bar applies and is dispositive of Wang’s
7 petition.
8 As an initial matter, the Government is correct that Wang
9 failed to exhaust two arguments in his brief. Wang argues that
10 (1) he did not knowingly assist in persecution and the
11 translator’s use of the word arrest was an erroneous
12 translation; and (2) the IJ never determined whether an “arrest”
13 under Chinese law is sufficiently coercive to trigger
14 application of the persecutor bar. Because the Government
15 raises exhaustion and because Wang’s brief to the BIA did not
16 raise these arguments, these issues are not properly before us.
17 Foster v. U.S. INS, 376 F.3d 75, 78 (2d Cir. 2004) (“To preserve
18 a claim, we require [p]etitioner to raise issues to the BIA in
19 order to preserve them for judicial review.” (internal
20 quotation marks)); see also Lin Zhong v. U.S. Dep’t of Justice,
21 480 F.3d 104, 107, 121-23 (2d Cir. 2006).
3
1 Moreover, even considering all of the arguments, we discern
2 no error in the agency’s application of the persecutor bar. An
3 alien is barred from asylum and withholding of removal if he
4 “ordered, incited, assisted, or otherwise participated in the
5 persecution of any person on account of” a protected ground.
6 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i);
7 see Zhang Jian Xie v. INS, 434 F.3d 136, 140 (2d Cir. 2006).
8 If the evidence indicates that an asylum applicant engaged in
9 any of these activities, the applicant has “the burden of
10 proving by a preponderance of the evidence that he . . . did
11 not so act.” 8 C.F.R. § 1208.13(c)(2)(ii). “Four relevant
12 factors determine whether the persecutor bar applies to a
13 particular alien: (1) whether the alien was ‘involved in’ acts
14 of persecution by ordering, inciting, or actively carrying out
15 the acts; (2) whether there is a nexus between the persecution”
16 and a protected ground; “(3) whether the alien’s actions, if
17 not outright ‘involvement’ under the first factor, amount to
18 assistance or participation in persecution;” and (4) whether
19 the alien was culpable, i.e., “whether [he] had sufficient
20 knowledge that [his] actions might assist in persecution.” Yan
4
1 Yan Lin v. Holder, 584 F.3d 75, 79-80 (2d Cir. 2009); see also
2 Balachova v. Mukasey, 547 F.3d 374, 384-85 (2d Cir. 2008).
3 Here, the IJ reasonably concluded that Wang’s case was
4 controlled by our precedent. In Zhang Jian Xie, we concluded
5 that the agency properly applied the persecutor bar to an asylum
6 applicant who, while working as a driver for family planning
7 authorities, transported women to hospitals so family planning
8 officials could perform forced abortions. 434 F.3d at 138. We
9 concluded that the Xie was subject to the persecutor bar
10 regardless of his redemptive act in freeing the final woman he
11 was transporting. Id. at 143–44.
12 Wang’s case is not meaningfully distinguishable. As the
13 IJ noted, Wang consistently testified that he drove family
14 planning authorities to arrest women, which rebuts his claim
15 that he did not knowingly assist in persecution. His claim is
16 further rebutted by his testimony that he knew what he was doing
17 was not right and that he warned a friend when the authorities
18 were coming for her. Wang argues that the only woman he
19 transported to the hospital actually went along voluntarily,
20 but Wang’s testimony on this point was equivocal: he stated that
21 she did not resist and may have consented, but also noted that
5
1 she did not look happy during the drive and that he did not know
2 what happened when the family planning staff was in the woman’s
3 house. Because Wang had the burden to rebut application of the
4 bar and his testimony supports a conclusion that he knowingly
5 transported a woman for an involuntary abortion and drove
6 officials in other attempts to detain women for abortions, we
7 see no basis to overturn the agency’s ruling. 8 C.F.R.
8 § 1208.13(c)(2)(ii).
9 Finally, in Zhang Jian Xie this Court held that, despite
10 the petitioner’s redemptive act of releasing a captive woman
11 who he was transporting to the hospital for a forced abortion,
12 the BIA did not err in concluding that his other acts of
13 transporting women for forced abortions subjected him to the
14 persecutor bar. 434 F.3d at 143–44. Wang argues that Zhang
15 Jian Xie is distinguishable because Wang only assisted in one
16 abortion, but he cites no authority for the proposition that
17 application of the persecutor bar turns on the number of times
18 an alien assists in persecution. In any event, we have
19 suggested that “the BIA should apply the same definition to
20 persecution in the persecutor-bar context as it does in defining
21 who is a refugee,” Balachova, 547 F.3d at 384, and it is
6
1 well-settled that an alien has been persecuted if they have been
2 subjected to a single forced abortion, Yan Yan Lin, 584 F.3d
3 at 80 (“It is settled law that forced abortion is persecution
4 on account of political opinion.”). See also 8 U.S.C.
5 1101(a)(42) (providing that asylum is not available to anyone
6 who “ordered, incited, assisted, or otherwise participated in
7 the persecution of any person”). As in Zhang Jian Xie, we have
8 no basis to conclude that the BIA erred in applying the
9 persecutor bar despite Wang’s redemptive act.
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O=Hagan Wolfe, Clerk
7