Piao v. Barr ( 2020 )

18-781
Piao v. Barr
BIA
Nelson, IJ
A201 132 574
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
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 18th day of August, two thousand twenty.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DENNIS JACOBS,
9 JOSEPH F. BIANCO,
10 Circuit Judges.
11 _____________________________________
12
13 MINGJI PIAO,
14 Petitioner,
15
16 v. 18-781
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Dehai Zhang, Esq., Flushing, NY.
24
25 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
26 Attorney General; Russell J. E.
27 Verby, Senior Litigation Counsel;
28 John D. Williams, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of
31 Justice, Washington, DC.
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
4 is DISMISSED in part and DENIED in part.
5 Petitioner Mingji Piao, a native and citizen of the
6 People’s Republic of China, seeks review of a March 8, 2018
7 decision of the BIA affirming a May 18, 2017 decision of an
8 Immigration Judge (“IJ”) denying Piao asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Mingji Piao, No. A201 132 574 (B.I.A. Mar.
11 8, 2018), aff’g No. A201 132 574 (Immig. Ct. N.Y.C. May 18,
12 2017). We assume the parties’ familiarity with the
13 underlying facts and procedural history.
14 We have reviewed both the IJ’s and the BIA’s opinions
15 “for the sake of completeness.” Wangchuck v. Dep’t of
16 Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The
17 applicable standards of review are well established. See
18 8 U.S.C. § 1252(b)(4)(B); Wei Sun v. Sessions, 883 F.3d 23,
19 27 (2d Cir. 2018).
20 A. Asylum
21 We lack jurisdiction to review the agency’s pretermission
22 of Piao’s asylum application as untimely for being filed more
23 than one year after her arrival in the United States. See
2
1 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). The record belies
2 Piao’s contention that the agency failed to consider all the
3 reasons she proffered to excuse her untimely filing.
4 B. Withholding of Removal and CAT Relief
5 1. Family Planning Claim
6 The agency did not err in denying withholding of removal
7 based on Piao’s failure to adequately corroborate her claim
8 that Chinese family planning officials forced her to
9 terminate two pregnancies in the 1980s by threat of onerous
10 fines. The Immigration and Nationality Act (“INA”) provides
11 that “a person who has been forced to abort a pregnancy . .
12 . shall be deemed to have been persecuted on account of
13 political opinion.” 8 U.S.C. § 1101(a)(42)(B); see also Xiu
14 Fen Xia v. Mukasey, 510 F.3d 162, 165 (2d Cir. 2007). “An
15 abortion is not ‘forced’ . . . unless the threatened harm for
16 refusal would, if carried out, be sufficiently severe that it
17 amounts to persecution.” In re T-Z-, 24 I. & N. Dec. 163,
18 169 (B.I.A. 2007). In order for economic harm to constitute
19 persecution, the harm must be “severe,” such that it would
20 “constitute a threat to an individual’s life or freedom,” but
21 an applicant “need not demonstrate a total deprivation of
22 livelihood or a total withdrawal of all economic opportunity
23 in order to demonstrate harm amounting to persecution.” In
3
1 re T-Z-, 24 I. & N. Dec. at 170, 173. “[A]n asylum applicant
2 must offer some proof” “regarding . . . income . . ., h[er]
3 net worth . . . , or any other facts that would make it
4 possible . . . to evaluate h[er] personal financial
5 circumstances in relation to the” government’s imposition of
6 an economic disadvantage. Guan Shan Liao v. U.S. Dep’t of
7 Justice, 293 F.3d 61, 70 (2d Cir. 2002); see also Wei Sun,
8 883 F.3d at 28.
9 Piao did not submit any financial information from the
10 relevant time period in the form of affidavits, testimony,
11 bank records, or evidence regarding how such fines were
12 collected (i.e., in one lump sum or in installments).
13 Further, although she submitted a statement from her husband,
14 that statement did not mention that she faced onerous fines
15 that left her without any option other than to terminate her
16 pregnancies; rather, it stated only that family planning
17 officials did not grant them permission to have a second child
18 so Piao terminated her second and third pregnancies. On this
19 record, the agency did not err in finding that Piao failed to
20 establish that her abortions were forced so as to constitute
21 past persecution under the INA. See 8 U.S.C.
22 § 1101(a)(42)(B); see also Xiu Fen Xia, 510 F.3d at 165.
23 Contrary to Piao’s contention, the agency was not
4
1 required to find that she satisfied her burden of proof simply
2 because her testimony was deemed credible. See Wei Sun, 883
3 F.3d at 28 (“[A]n applicant may be generally credible but
4 h[er] testimony may not be sufficient to carry the burden of
5 persuading the fact finder of the accuracy of h[er] claim of
6 crucial facts if [s]he fails to put forth corroboration that
7 should be readily available.”); see also 8 U.S.C.
8 § 1158(b)(1)(B)(ii) (“Where the trier of fact determines that
9 the applicant should provide evidence that corroborates
10 otherwise credible testimony, such evidence must be provided
11 unless the applicant does not have the evidence and cannot
12 reasonably obtain the evidence.”), § 1231(b)(3)(C) (applying
13 burden of proof standard for asylum in § 1158(b)(1)(B) to
14 withholding claims). Insofar as Piao challenges the IJ’s
15 determination that she failed to adequately corroborate the
16 abortions without providing her an opportunity to explain the
17 missing evidence or evaluating her explanations, see Wei Sun,
18 883 F.3d at 31, remand for the IJ to do so would be futile.
19 That evidence relates to whether Piao had abortions, but the
20 agency assumed the truth of those events in reaching its
21 alternative, dispositive conclusion that Piao failed to
22 demonstrate that the fines she faced amounted to “force.” See
23 Gurung v. Barr, 929 F.3d 56, 62 (2d Cir. 2019) (noting that
5
1 remand is futile “when the IJ articulates an alternative and
2 sufficient basis for her determination”). Further, the
3 agency was not compelled to conclude that Piao testified to
4 sufficient “aggravating circumstances” surrounding her
5 involuntary use of an intrauterine device under the family
6 planning policy so as to establish that she suffered
7 persecution. See Mei Fun Wong v. Holder, 633 F.3d 64, 75 (2d
8 Cir. 2011).
9 2. Religion Claim
10 Piao challenges only the agency’s determination that she
11 did not establish that she would “more likely than not” suffer
12 future persecution on account of her religion. 8 C.F.R.
13 § 1208.16(b)(2). To obtain withholding of removal, an
14 applicant must show either a “clear probability” that she
15 will be singled out for persecution or that the country of
16 removal has a pattern or practice of persecuting similarly
17 situated individuals. Hongsheng Leng v. Mukasey, 528 F.3d
18 135, 143 (2d Cir. 2008); see also 8 C.F.R.
19 § 1208.16(b)(2)(i), (ii).
20 The agency did not err in finding that Piao failed to
21 establish the requisite fear of persecution based on her
22 religious practice in China because she stated that Chinese
23 officials did not know that she attended her unregistered
6
1 church when it was raided in 1995, and she did not assert
2 that officials expressed any interest in her as a result.
3 See 8 C.F.R. § 1208.16(b)(2)(i), (ii); see also Jian Xing
4 Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the
5 absence of solid support in the record . . . , [an
6 applicant’s] fear is speculative at best.”). “[I]n order to
7 establish eligibility for relief based exclusively on
8 activities undertaken after h[er] arrival in the United
9 States, [Piao] [had to] make some showing that authorities in
10 h[er] country of nationality are (1) aware of h[er] activities
11 or (2) likely to become aware of h[er] activities.”
12 Hongsheng Leng, 528 F.3d at 138. Piao did not assert that
13 officials had discovered her religious practice outside of
14 China, either for the several years that she lived in Russia
15 (on and off between 1992 and 2005) or for the years she has
16 attended church in the United States (since 2005). And given
17 that there are 50 to 70 million Christians who attend
18 unregistered churches in China, the agency did not err in
19 finding that she failed to demonstrate a reasonable
20 possibility that Chinese officials will likely discover her
21 religious practice. See Xiang Jin Yang v. Lynch, 636 F.
22 App’x 60, 61 (2d Cir. 2016).
23 Piao does not challenge the agency’s finding that she
7
1 failed to establish a pattern or practice of persecution of
2 similarly situated individuals, but in any event, the agency
3 reasonably concluded that the country conditions evidence did
4 not show “systemic or pervasive” persecution of similarly
5 situated Christians sufficient to demonstrate a pattern or
6 practice of persecution in China. In re A-M-, 23 I. & N.
7 Dec. 737, 741 (B.I.A. 2005).
8 Piao’s failure to establish either past persecution or a
9 probability of future persecution was dispositive of both
10 withholding of removal and CAT relief because both forms of
11 relief were based on the same underlying facts. See Paul v.
12 Gonzales, 444 F.3d 148, 156–57 (2d Cir. 2006).
13 For the foregoing reasons, the petition for review is
14 DISMISSED in part as to asylum and DENIED in remaining part.
15 All pending motions and applications are DENIED and stays
16 VACATED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe,
19 Clerk of Court
8