Chonjor v. Holder

10-5149-ag
Chonjor v. Holder
BIA
Weisel, IJ
A089 262 849
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 fourteen.
PRESENT:
JOHN M. WALKER, JR.,
ROSEMARY S. POOLER,
PETER W. HALL,
Circuit Judges.
_____________________________________
KARMA CHONJOR,
Petitioner,
v. 10-5149-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Jin Hu, New York, NY.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Francis W. Fraser, Senior
Litigation Counsel; Marion E.
Guyton, 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 GRANTED in part and DENIED in part.
Petitioner Karma Chonjor, a native and citizen of China
from the Tibet Autonomous Region, seeks review of a November
17, 2010, order of the BIA, affirming a December 10, 2008,
decision of Immigration Judge (“IJ”) Robert D. Weisel,
denying his application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In
re Karma Chonjor, No. A089 262 849 (B.I.A. Nov. 17, 2010),
aff’g No. A089 262 849 (Immig. Ct. N.Y. City Dec. 10, 2008).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008) (internal quotation marks omitted). The applicable
standards of review are well-established. See 8 U.S.C. §
1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
Cir. 2009).
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I. Nepal
Upon consideration of the BIA’s and IJ’s decisions, we
conclude that we are unable to review the agency’s
determination that Chonjor failed to establish past
persecution in Nepal because the agency did not clearly
state its justification for this finding. See Beskovic v.
Gonzales, 467 F.3d 223, 227 (2d Cir. 2006) (requiring a
certain minimal level of analysis from agency decisions
denying asylum to enable meaningful judicial review). With
respect to the 1986 burning of Chonjor’s home by Nepalese
locals, it is unclear whether the IJ’s rejection of
Chonjor’s claim is predicated on a lack of nexus or the
insufficiency of the harm. Although the BIA appears to have
interpreted the IJ’s decision as relating to whether the
harm Chonjor suffered rose to the level of persecution, the
government contends that the IJ rejected Chonjor’s claim on
nexus grounds. Because we cannot confidently ascertain the
agency’s justification for rejecting Chonjor’s claim of past
persecution in Nepal, we remand to the agency for a clearer
statement of its past persecution finding. See Beskovic,
467 F.3d at 227; see also Eneh v. Holder, 601 F.3d 943, 947
(9th Cir. 2010).
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II. China
Notwithstanding Chonjor’s argument to the contrary, the
agency did not err in finding that he failed to establish a
well-founded fear of persecution in China based on his
activities in the United States. See Hongsheng Leng v.
Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (“Put simply, to
establish a well-founded fear of persecution in the absence
of any evidence of past persecution, an alien must make some
showing that authorities in his country of nationality are
either aware of his activities or likely to become aware of
his activities.”); see also Jian Xing Huang v. INS, 421 F.3d
125, 128-29 (2d Cir. 2005). While Chonjor asserts that the
agency ignored this potential ground for relief, the IJ
explicitly noted the absence of any evidence indicating that
authorities in China were aware of his activities in the
United States. See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 337 n.17 (2d Cir. 2006) (noting that the
agency is presumed to have “taken into account all of the
evidence before [it], unless the record compellingly
suggests otherwise”).
Although Chonjor takes issue with the BIA’s finding
that the record evidence did not reflect a pattern or
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practice of persecution against Tibetans in China, the task
of resolving conflicts in the record evidence lies “largely
within the discretion of the agency.” Jian Hui Shao v.
Mukasey, 546 F.3d 138, 171 (2d Cir. 2008); see also Siewe v.
Gonzales, 480 F.3d 160, 168 (2d Cir. 2007) (“support for a
contrary inference – even one more plausible or more natural
– does not suggest error”). Where, as here, the agency’s
inference “is tethered to the evidentiary record, we will
accord deference to the finding.” Siewe, 480 F.3d at 169.
Accordingly, because the evidence indicates that the
repression of Tibetans varied in different regions of China,
the agency reasonably determined that Chonjor failed to
establish a pattern or practice of persecution of Tibetans
in China, and, thus, the agency did not err by requiring
Chonjor to show that he would be singled out for
persecution. See 8 C.F.R. § 1208.16(b)(2); Mufied v.
Mukasey, 508 F.3d 88, 91 (2d Cir. 2007).
Lastly, Chonjor’s contention that remand is warranted
because the BIA has failed to provide sufficient guidance
concerning the application of its pattern or practice
standard is misplaced. In Mufied v. Mukasey, we remanded a
Christian Indonesian alien’s proceedings to the agency for
failure to consider his pattern or practice claim and
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“encourage[d] the BIA to elaborate upon the ‘systemic,
pervasive, or organized’ standard it has applied to
analyzing such claims.” 508 F.3d at 89. However, where, as
in this case, “the BIA explicitly discussed the pattern or
practice claim and the record includes substantial
documentary evidence regarding the conditions in
petitioner’s homeland, we are able to reach the conclusion
that the agency’s decision was not erroneous.” Santoso v.
Holder, 580 F.3d 110, 111 n.1 (2d Cir. 2009).
For the foregoing reasons, the petition for review is
GRANTED in part with respect to Chonjor’s claim of past
persecution in Nepal and DENIED in all other respects.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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