Zeng v. Barr

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 10, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
ZHIPENG ZENG,
Petitioner,
v. No. 19-9539
(Petition for Review)
WILLIAM P. BARR, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
_________________________________
Petitioner Zhipeng Zeng is a native and citizen of China who seeks review of the
denial by the Board of Immigration Appeals (BIA) of his application for asylum,
withholding of removal, and protection under the Convention Against Torture (CAT).
Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny the petition for review.
*
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
I. BACKGROUND
Petitioner was admitted to the United States as a nonimmigrant visitor. He filed
his application for relief on July 3, 2013. An asylum officer denied his application and
referred his case to an immigration judge (IJ). The Department of Homeland Security
then commenced removal proceedings against Petitioner for remaining in the United
States longer than permitted. See 8 U.S.C. § 1227(a)(1)(B).
At his merits hearing Petitioner testified as follows: In March 2012 he received a
notice from the demolition department of Jilin City in China that the building he resided
in with his mother was going to be demolished by May 1. He refused to move, though,
until he received additional compensation, believing that the price he was offered was too
low. The demolition department turned off the building’s utilities early in April.
In the early morning of June 21, Petitioner went downstairs in his building and
discovered about 100 people from the demolition department. They asked him to vacate
that same day. He replied that he still would not move without a better offer. When they
would not allow him to leave the building, he went upstairs to call the police, who said
they could not help him. He came downstairs again later that morning and repeated that
he would not move until he received reasonable compensation. He was attacked with
knives by five workers, resulting in his hospitalization for 28 days. He believed he was
attacked because he “was strongly against this demolition policy from the government.”
Certified Administrative Record (CAR) 170; see id. at 160 (describing the policy he
opposed as “the government would try to occupy people’s lands by force”). Later a
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neighbor was also beaten, but he did not know the person and had never communicated
with him.
During Petitioner’s hospitalization he and his mother received threatening phone
calls telling them not to involve the police or complain about the attack. Also during that
time, the unit he shared with his mother was demolished. The two moved to a new home
in the countryside. Even in the new home he received repeated phone calls, warning him
that he should not take legal action against his attackers or contact the police. Because he
feared he could still be harmed by his attackers, who had not yet been caught, he fled to
the United States about a year after the attack.
The IJ denied (1) Petitioner’s claims for asylum and withholding because he had
not shown he was attacked on account of his political opinion, and (2) his claim for
protection under the CAT because he had not shown that his attackers were public
officials or that they were acting with the acquiescence of the government. The BIA
affirmed the IJ’s decision without opinion.
Petitioner sought review in this court, but we did not address the merits. At the
request of Petitioner and the government, we remanded to the BIA to consider the IJ’s
conclusion that the harm Petitioner suffered constituted past torture, but that he was still
ineligible for relief under the CAT because he did not establish that his attackers were
public officials or individuals acting with the acquiescence of such officials. On remand
the BIA in turn remanded to the IJ for further fact-finding regarding the identities of the
attackers.
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The parties agreed that no additional evidentiary hearing was needed and that the
decision on remand could be based on the existing record. Because the IJ who originally
handled the matter had been transferred, a different IJ was assigned to the case. But
instead of making a finding as to the identities of Petitioner’s attackers, the IJ ruled that,
even assuming they were public officials, Petitioner was still ineligible for protection
under the CAT as he could not show that it was more likely than not he would be tortured
if returned to China. (Going beyond the scope of the remand, the IJ also denied asylum
and withholding of removal, ruling that Petitioner failed to establish that he was harmed
because of his political opinion.)
Petitioner appealed the IJ’s decision to the BIA, which affirmed the IJ’s denial of
relief under the CAT because he had not established likely future torture. He has
petitioned for our review of that decision, as well as the BIA’s earlier denial of his
asylum and withholding claims. We address all three claims for relief.
II. DISCUSSION
“Our scope of review directly correlates to the form of the BIA decision.”
Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th Cir. 2007). When a single BIA
member issues a summary affirmance without opinion, as with the first BIA opinion in
Petitioner’s case, we consider the IJ’s opinion to be the agency decision for the purpose
of appeal and “look[] to that opinion to determine the agency’s rationale.” Id. But “if a
single BIA member issues a brief order affirming, modifying, or remanding the IJ’s
order,” as with the second BIA decision in this case, then the BIA decision is considered
the final removal order. Id. In that circumstance, however, “we may consult the IJ’s
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opinion to the extent that the BIA relied upon or incorporated it.” Id. (internal quotation
marks omitted). “We review . . . legal determinations de novo, and . . . findings of fact
under a substantial-evidence standard.” Niang v. Gonzales, 422 F.3d 1187, 1196 (10th
Cir. 2005). Unless “any reasonable adjudicator would be compelled to conclude to the
contrary,” we treat the findings of fact as conclusive. 8 U.S.C. § 1252(b)(4)(B).
A. Asylum and Withholding of Removal
To be eligible for asylum and withholding of removal, an applicant must
demonstrate he was persecuted or has a well-founded fear of persecution on account of
his race, religion, nationality, membership in a particular social group, or political
opinion. See Niang, 422 F.3d at 1194, 1195. An applicant must therefore provide
evidence that the individuals who harmed him were motivated to do so because of the
protected ground, thus establishing a “nexus” between the harm and the ground. See INS
v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (because asylum statute “makes motive
critical, [applicant] must provide some evidence of [his persecutors’ motives], direct or
circumstantial”); Niang, 422 F.3d at 1200. On appeal Petitioner challenges the IJ’s
determination that he was not attacked because of his political opinion. He contends that
he was attacked for having an imputed “anti-government political stance,” as he
“protested by words and action the unfair treatment by the Chinese government on the
barbaric eminent domain policy.” Aplt. Br. at 14.
The evidence here, however, supports the IJ’s finding that Petitioner opposed his
building’s demolition for only personal reasons, not because he held a political opinion
against the government’s policy of eminent domain. He never organized or participated
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in any protests of the demolition of his building or of others nearby. When asked why he
had not protested other demolitions, he said that “it wasn’t the place I, I lived so I did not
protest.” CAR 176. He also expressed several times that his primary concern was
inadequate financial compensation. Although Petitioner said he told the demolition
department that he was “very strongly against this policy to demolish our homes,” CAR
171, he also told an official he would move if he was offered enough compensation.
The Seventh Circuit confronted a similar circumstance in Weiping Chen v. Holder,
744 F.3d 527 (7th Cir. 2014). The petitioner had been detained and beaten for refusing to
vacate his store and protesting its demolition. See id. at 530. But he had “not engage[d]
in any of the classic examples of political activity,” having taken part in only one public
sit-in. Id. at 534. The court concluded that his harm was the result of “a personal
property dispute rather than an expression of political opinion.” Id. Unpublished
opinions by other circuits have also differentiated between a personal opposition to
demolition of one’s property and holding a political opinion against China’s eminent-
domain policy. See, e.g., Bin Huang v. U.S. Att’y Gen., 569 F. App’x 715, 719 (11th Cir.
2014) (“Huang’s incident involved a personal dispute with the government, where he was
beaten for trying to stop his home’s demolition, not for his taking a general political
stance against corruption.”); Zhen Hui Liu v. Mukasey, 257 F. App’x 424, 426 (2d Cir.
2007) (“Liu and his father protested the confiscation of their family’s land in an effort to
protect the family’s livelihood, not challenge the legitimacy of China’s government.”).
Petitioner urges us to follow the Ninth Circuit’s decision in Xinbing Song v.
Sessions, 882 F.3d 837, 841–42 (9th Cir. 2017), which held that a petitioner who was
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detained and beaten for protesting the Chinese government’s attempt to demolish a
building in which he owned a unit was persecuted for his “anti-government anti-eminent
domain political opinion.”1 But the petitioner in Song had organized a protest with over
100 neighbors, identified himself to a government official as a protest leader, and hung a
banner from his unit stating that he “would rather die than give up his property.” Id. at
840. Government officials also denounced Song’s protest for being “anti-government.”
Id. Petitioner here, in contrast, was not involved in any activity that elevated his
opposition to his building’s demolition to an actual or perceived political action.
Petitioner nevertheless contends that his eligibility for asylum and withholding
cannot be resolved without an identification of his attackers. He also asserts that because
he was found to be a credible witness, there should be no dispute that his attackers were
government officials. But regardless of the identity of his attackers, his failure to
establish that he was harmed because of his political opinion precludes asylum eligibility.
This lack of nexus also disposes of his argument that a “severe form of past persecution
alone, as Petitioner here with permanent handicap, and without more, entitles the victim
to an asylum grant.” Aplt. Br. at 11. And because the burden of proof for withholding of
removal is “more demanding” than that for asylum, he necessarily fails to show he is
entitled to relief under the withholding statute as well. Elzour v. Ashcroft, 378 F.3d 1143,
1149 (10th Cir. 2004) (internal quotation marks omitted).
1
In his brief, Petitioner cites to the Ninth Circuit’s decision in Song v. Sessions, 877 F.3d
889 (9th Cir. 2017), but that decision was amended and superseded at 882 F.3d 837 (9th
Cir. 2017).
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B. Convention Against Torture
To receive the protections of the CAT, an applicant must “show that it is more
likely than not that he or she would be tortured if removed to [a particular] country,”
Elzour, 378 F.3d at 1150, and that the torture would be “inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other person acting in an
official capacity,” 8 C.F.R. § 1208.18(a)(1). Under the CAT an applicant “is not entitled
to a presumption of future torture based on evidence of past torture; nor does a showing
of past torture automatically render [him] CAT eligible.” Niang, 422 F.3d at 1202.
Petitioner argues that the BIA erred in denying relief under the CAT by (1) ignoring
alleged evidence of his risk of future torture, and (2) failing to adhere to this court’s
mandate “to clearly make an identification of the perpetrators” of the attack on Petitioner.
Aplt. Br. at 12. Both grounds are without merit.
First, Petitioner contends that the BIA did not consider that he attempted to have
his attackers arrested by the police and consequently received threats to his and his
mother’s life and safety. But the BIA did refer to the IJ’s findings, which considered the
threats Petitioner received while hospitalized and described Petitioner’s efforts to contact
the police in hopes of locating his attackers. Although Petitioner argues that there is no
indication that the threats ceased when he left China, he has offered no evidence of any
present threats. His testimony before the IJ claimed only that while he was hospitalized
and while he was out of the hospital receiving treatment for his injuries, he and his
mother received phone calls in 2012 and 2013 threatening to hurt him if he contacted the
police. The lack of evidence of any recent or ongoing threats, coupled with the already-
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completed demolition of the building and the ability of his mother to live in safety after
the attack, provides substantial evidence to support the BIA’s decision that he failed to
show likely future torture upon return.
Petitioner claims that the BIA also erred because it did not make a finding of the
identity of his attackers in accordance with our remand order and that this mistake
requires that we remand again to the BIA. But Petitioner cannot show how he was
harmed by the absence of this finding. See Nazaraghaie v. INS, 102 F.3d 460, 465 (10th
Cir. 1996) (“[E]ven assuming arguendo that the BIA failed to weigh certain pieces of
evidence fully, the result in this case would be no different. Any error on the part of the
BIA is therefore harmless . . . .”). Instead of making this finding, the BIA assumed that
his past torture was “by or at the acquiescence of public officials,” CAR 4, but
determined that he still could not establish likely future torture and was therefore
ineligible for relief under the CAT.
III. CONCLUSION
We DENY the petition for review.
Entered for the Court
Harris L Hartz
Circuit Judge
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