Ou v. Barr ( 2020 )

17-2622
Ou v. Barr
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
20th day of April, two thousand twenty.
Present:
BARRINGTON D. PARKER,
DEBRA ANN LIVINGSTON,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
ZHIHUA OU,
Petitioner,
v. 17-2622
WILLIAM P. BARR, United States Attorney General,
Respondent.
_____________________________________
For Petitioner: YEVGENY SAMOKHLEB, Law Offices of Yevgeny
Samokhleb, P.C., New York, NY
For Respondent: KATHERINE A. SMITH, Office of Immigration Litigation,
United States Department of Justice, Washington, DC
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
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the petition for review is DISMISSED in part and DENIED in part.
Petitioner Zhihua Ou, a native and citizen of China, seeks review of an August 8, 2017
decision of the BIA affirming an October 21, 2016 decision of an Immigration Judge (“IJ”)
denying Ou’s request for asylum as time-barred and denying his request for withholding of
removal and relief under the Convention Against Torture (“CAT”) on the merits. In re Zhihua
Ou, No. A 087-646-893 (B.I.A. Aug. 8, 2017), aff’g No. A 087-646-893 (Immig. Ct. New York
Oct. 21, 2016). The government moves to dismiss in part for lack of jurisdiction and summarily
deny in part Ou’s petition for review. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
Under the circumstances of this case, we consider both the IJ’s and the BIA’s opinions “for
the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006).
I. Asylum
An alien is ineligible for asylum “unless the alien demonstrates by clear and convincing
evidence that the application has been filed within 1 year after the date of the alien’s arrival in the
United States.” 8 U.S.C. § 1158(a)(2)(B). Our jurisdiction to review the agency’s findings
regarding the timeliness of an asylum application is limited to “constitutional claims or questions
of law.” 8 U.S.C. § 1252(a)(2)(D). For jurisdiction to attach, such claims must be colorable.
Quito v. Barr, 948 F.3d 83, 93–94 (2d Cir. 2020).
Ou fails to raise a colorable constitutional question or question of law. Contrary to Ou’s
argument, the IJ did not commit legal error by requiring corroboration where none could
reasonably be produced. See Wei Sun v. Sessions, 883 F.3d 23, 28 (2d Cir. 2018); Diallo v. I.N.S.,
232 F.3d 279, 287 (2d Cir. 2000). Rather, the IJ made an adverse credibility determination—a
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factual finding, see, e.g., Singh v. Barr, 939 F.3d 457, 464 (2d Cir. 2019)—that Ou disputes. The
IJ gave little weight to the testimony of Ou’s alleged cousin because she had no personal
knowledge of when Ou arrived in the United States. Likewise, the IJ declined to credit the
testimony of another witness who claimed to have seen Ou in China in early December 2008
because of inconsistencies between her testimony and Ou’s. In making these factual
determinations, the IJ applied the relevant legal standards, permissibly weighed the evidence
presented, and provided specific reasons for the ultimately adverse credibility determination, so
Ou’s contention that the IJ committed legal error is without merit. See Hong Fei Gao v. Sessions,
891 F.3d 67, 76–79 (2d Cir. 2018). Accordingly, we lack jurisdiction to review Ou’s claim
regarding the timeliness of his asylum application.
II. Withholding of Removal and CAT Relief
As an initial matter, we deny the government’s motion for summary denial because that is
appropriate only in exceptional circumstances where a petition for review is “frivolous” or
“presents no arguably meritorious issue.” Pillay v. I.N.S., 45 F.3d 14, 17 (2d Cir. 1995) (per
curiam); United States v. Davis, 598 F.3d 10, 13 (2d Cir. 2010). Nevertheless, because Ou has
filed a brief and has failed to articulate a legal basis to challenge the agency’s decision, we construe
the government’s motion as its brief and dispose of Ou’s petition on the merits. See
Ponnampalam v. Barr, 769 F. App’x 25, 26 (2d Cir. 2019); Mengquan Zhao v. Holder, 438 F.
App’x 2, 3 (2d Cir. 2011).
To qualify for withholding of removal under 8 U.S.C. § 1231(b)(3), an applicant must
demonstrate “that it is more likely than not that he or she would be persecuted on account of race,
religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R.
§ 1208.16(b)(2). To qualify for relief under the CAT, an applicant must show “that it is more
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likely than not that he . . . would be tortured if removed to the proposed country of removal.” 8
C.F.R. § 1208.16(c)(2). Ou argues that he has established a well-founded fear of persecution and,
therefore, has also made out a prima facie case for relief. But he does not challenge the IJ’s
adverse credibility finding as to Ou’s claim of persecution or his asserted adherence to
Catholicism. These findings were the basis of the IJ’s determination that Ou had failed to
establish either past persecution or a fear of future harm. See Jian Xing Huang v. U.S. I.N.S., 421
F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid support in the record for [petitioner’s]
assertion that he will be [persecuted], his fear is speculative at best.”); see also Banegas Gomez v.
Barr, 922 F.3d 101, 109 (2d Cir. 2019). By not challenging the adverse credibility finding that
undergirded the IJ’s denial of relief, Ou effectively concedes that the IJ’s conclusion was not
erroneous. See Y.C. v. Holder, 741 F.3d 324, 336 (2d Cir. 2013) (deeming claim unsupported
where IJ found petitioner’s evidence not credible). Accordingly, we decline Ou’s invitation to
consider evidence that the IJ deemed not credible absent any argument that the underlying
credibility finding was flawed.
* * *
We have considered Ou’s remaining arguments and find them to be without merit. The
government’s motion to dismiss is GRANTED but its motion for summary denial is DENIED.
We DISMISS in part and DENY in part Ou’s petition for review. 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.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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