Xie v. Garland

20-2216
Xie v. Garland
BIA
Bither, IJ
A206 582 110
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 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 6th day of January, two thousand twenty-
three.
PRESENT:
DEBRA ANN LIVINGSTON,
Chief Judge,
JOHN M. WALKER, JR.,
ALISON J. NATHAN,
Circuit Judges.
_____________________________________
CHUN XIE,
Petitioner,
v. 20-2216
NAC
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Jim Li, Esq., Flushing, NY.
FOR RESPONDENT: Brian M. Boynton, Acting
Assistant Attorney General;
Bernard A. Joseph, Senior
Litigation Counsel; Enitan O.
Otunla, Trial Attorney, 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 the petition for review
is DENIED.
Petitioner Chun Xie, a native and citizen of the People’s
Republic of China, seeks review of a June 25, 2020, decision
of the BIA affirming an April 16, 2018, decision of an
Immigration Judge (“IJ”) denying asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Chun Xie, No. A206-582-110 (B.I.A. June 25,
2020), aff’g No. A206-582-110 (Immig. Ct. N.Y. City Apr. 16,
2018). We assume the parties’ familiarity with the
underlying facts and procedural history.
We have reviewed the IJ’s decision as modified by the
BIA, i.e., minus the adverse credibility determination that
the BIA did not reach. See Yang v. U.S. Dep’t of Just., 426
F.3d 520, 522 (2d Cir. 2005). The applicable standards of
review are well established. See 8 U.S.C. § 1252(b)(4)(B)
(“[T]he administrative findings of fact are conclusive unless
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any reasonable adjudicator would be compelled to conclude to
the contrary[.]”); Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
2009) (reviewing factual findings for substantial evidence
and questions of law de novo).
To establish eligibility for asylum and withholding of
removal, an applicant must establish past persecution or a
well-founded fear or likelihood of future persecution on
account of “race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§§ 1158(b)(1)(B)(i), 1231(b)(3)(A); 8 C.F.R. §§ 1208.13(b),
1208.16(b). In order to establish persecution on account of
political opinion, “[t]he applicat[ion] must . . . show,
through direct or circumstantial evidence, that the
persecutor’s motive to persecute arises from the applicant’s
political belief.” Zhang v. Gonzales, 426 F.3d 540, 545 (2d
Cir. 2005). “[O]pposition to endemic corruption or
extortion, no less than opposition to other government
practices or policies, may have a political dimension when it
transcends mere self-protection and represents a challenge to
the legitimacy or authority of the ruling regime.” Id. at
547–48.
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The agency did not err in concluding that Xie failed to
establish that village cadres harmed him on account of an
anti-corruption political opinion because he testified that
they beat him after he engaged in a verbal argument with the
village head over a personal land dispute. See id. And he
did not provide any testimony from which to infer that
government officials believed his complaints were for any
reason other than to protect his own interest. See id.Accordingly, the agency did not err in denying asylum and
withholding of removal for failure to show a nexus to a
protected ground as required for asylum and withholding of
removal. See 8 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).
The agency also did not err in denying CAT relief.
Unlike asylum and withholding, CAT relief does not require a
nexus to a protected ground. See 8 C.F.R. §§ 1208.16(c),
1208.17. To obtain CAT relief, an applicant must show that
it is “more likely than not” that he will be tortured.
8 C.F.R. §§ 1208.16(c)(2), 1208.17(a). To show that torture
is “more likely than not,” an applicant “must establish that
there is greater than a fifty percent chance . . . that he
will be tortured upon return to his . . . country of origin.”
Wang v. Ashcroft, 320 F.3d 130, 144 n.20 (2d Cir. 2003).
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First, contrary to Xie’s contention, the IJ denied CAT
relief on both credibility and burden grounds and thus the
BIA did not err in affirming the denial of CAT on burden
grounds alone. Second, Xie did not satisfy his burden of
proof because he did not allege that he faces torture,
testifying only that, if he returns to his village, he will
be unable to retake possession of the government-owned
farmland that he previously occupied. See 8 C.F.R.
§§ 1208.16(c)(2), 1208.17(a); see also Wang, 320 F.3d at 144
n.20; cf. Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005)
(“In the absence of solid support in the record . . . [an
applicant’s] fear is speculative at best”).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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