Piao v. Lynch

13-4420
Piao v. Lynch
BIA
Laforest, IJ
A088 042 533
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
23rd day of September, two thousand sixteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
HONGZHE PIAO,
Petitioner,
v. 13-4420
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Guang Jun Gao, Flushing, New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Julie M.
Iversen, Senior Litigation Counsel;
Annette M. Wietecha, 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
DENIED.
Petitioner Hongzhe Piao, a native and citizen of the
People’s Republic of China, seeks review of an October 29, 2013,
decision of the BIA affirming a September 9, 2011, decision of
an Immigration Judge (“IJ”) denying Piao’s application for
asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Hongzhe Piao, No. A088 042 533
(B.I.A. Oct. 29, 2013), aff’g No. A088 042 533 (Immig. Ct. N.Y.
City Sept. 9, 2011). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
We previously denied Piao’s petition for review with
respect to his claim that he would be persecuted based on his
pro-democracy activities in the United States. Accordingly,
we address only Piao’s claim that he was arrested and detained
in China for harboring North Korean refugees. As to that claim,
we have reviewed both the IJ’s and the BIA’s opinions “for the
sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d
Cir. 2006). The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4); Yanqin Weng v. Holder,
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562 F.3d 510, 513–14 (2d Cir. 2009). Because the IJ did not
make an explicit credibility finding, we assume that Piao
testified credibly. See Mei Fun Wong v. Holder, 633 F.3d 64,
68 (2d Cir. 2011).
Piao asserted that he and his sister jointly opened a hotel
that provided assistance to North Korean refugees, and that,
as a result, he was arrested, detained for fifteen days, fined,
and his business license confiscated. Piao submitted a letter
from his other sister (not the sister with whom he claims to
have opened the hotel), which stated that another relative told
her about her brother’s arrest and detention in a telephone
conversation. He also submitted country conditions evidence
showing that the Chinese government arrests and detains people
who assist North Korean refugees, but the IJ did not address
this evidence.
“While consistent, detailed, and credible testimony may be
sufficient to carry the alien’s burden, evidence corroborating
his story, or an explanation for its absence, may be required
where it would reasonably be expected.” Diallo v. INS, 232 F.3d
279, 285 (2d Cir. 2000); 8 U.S.C. § 1158(b)(1)(B)(ii). Here,
although the IJ did not make an express credibility
determination, she concluded that Piao engaged in a “pattern
of attempts to deceive the United States Government,” A.R. 57,
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including making false representations in his initial visa
application and in his application for an employment visa. In
light of this finding, the agency reasonably required Piao to
corroborate his claims. See Yan Juan Chen v. Holder, 658 F.3d
246, 252 (2d Cir. 2011).
The only corroborating evidence that Piao submitted was the
letter from his sister. 1 The agency reasonably gave little
weight to this letter, as it was unsworn, was submitted by an
interested witness who was not subject to cross-examination,
and was prepared solely to support Piao’s asylum claim. In re
H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214–15 (BIA 2010), rev'd
on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d
Cir. 2012); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 342 (2d Cir. 2006) (holding that weight afforded to
evidence lies largely within agency discretion). Accordingly,
the record does not compel the conclusion that Piao adequately
corroborated his claim of past persecution.
Our case law establishes that, when denying a claim because
of an applicant’s failure to provide corroborating evidence,
the IJ must explain what evidence the applicant should have
submitted and establish that the evidence is reasonably
1
Piao also submitted two letters from his wife, neither of which
mentioned Piao’s assistance to North Korean refugees or his arrest
and detention in China.
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available. See Chuilu Liu v. Holder, 575 F.3d 193, 197-98 (2d
Cir. 2009); Diallo, 232 F.3d at 290. The IJ does not appear
to have done so in this case.
However, a petitioner must exhaust an issue by raising it
to the BIA before seeking judicial review. See Foster v. INS,
376 F.3d 75, 77 (2d Cir. 2004) (per curiam) (“[W]e require
‘[p]etitioner to raise issues to the BIA in order to preserve
them for judicial review.” (quoting Cervantes-Ascencio v. INS,
326 F.3d 83, 87 (2d Cir. 2003)). Although this requirement is
not jurisdictional, it is mandatory. See Lin Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 119–20 (2d Cir. 2007). In
addition, we normally do not consider arguments that are not
properly raised in the briefs on appeal. See Norton v. Sam’s
Club, 145 F.3d 114, 117–18 (2d Cir. 1998) (“Issues not
sufficiently argued in the briefs are considered waived and
normally will not be addressed on appeal.”). Here, Piao failed
to raise the IJ’s failure to identify the missing evidence
either to the BIA or in his brief on appeal. Accordingly, we
are constrained by our precedents from reaching this issue.
Piao’s attorney’s failure to preserve this potentially
meritorious issue is suggestive of ineffective assistance of
counsel. We require such a claim to be presented in the first
instance to the BIA, and we therefore do not reach it here. See
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Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d Cir. 1994); Yang
v. Gonzales, 478 F.3d 133, 142 (2d Cir. 2007). Piao can seek
relief by filing a motion to reopen in the BIA.
Arango-Aradondo, 13 F.3d at 614. Although the deadline for
filing a such a motion has passed, the time limit may be
equitably tolled to accommodate claims of ineffective
assistance of counsel so long as the movant “exercised due
diligence in pursuing the case during the period for which
tolling is sought.” Chen v. Gonzales, 437 F.3d 267, 269 (2d
Cir. 2006). Accordingly, we hereby grant a sixty-day stay of
deportation for Piao to file a motion to reopen in the BIA. If
Piao files such a motion within that deadline, the stay will
remain in effect until all BIA proceedings are complete. See
Arango-Aradondo, 13 F.3d at 615.
Finally, Piao’s brief on appeal contains a section heading
that refers to his claims for withholding of removal and relief
under the Convention Against Torture (“CAT”). However, the
ensuing section contains only a boilerplate summary of the
applicable legal standards and a single sentence asserting:
“In the present case, Petitioner shall be found to be a credible
witness and he had sufficiently corroborated his claim.” Pet.
Br. 19. This conclusory assertion is insufficient to present
this issue for our review. See Norton, 145 F.3d at 117. In
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any event, because Piao failed to establish his eligibility for
asylum, he necessarily failed to meet the higher standards for
withholding of removal or relief under the CAT. See Lecaj v.
Holder, 616 F.3d 111, 119–20 (2d Cir. 2010).
For the foregoing reasons, the petition for review is
DENIED. We grant a sixty-day stay of deportation so that Piao
may file a motion to reopen asserting his claim for ineffective
assistance of counsel. If he meets this deadline, the stay will
remain in effect until all BIA proceedings are complete.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk
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