Filed: Apr. 23, 2020
Latest Update: Apr. 23, 2020
Summary: 18-800 Wang v. Barr BIA Christensen, IJ A202 039 152 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 NO
Summary: 18-800 Wang v. Barr BIA Christensen, IJ A202 039 152 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 NOT..
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18-800
Wang v. Barr
BIA
Christensen, IJ
A202 039 152
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 April, two thousand twenty.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
SUSAN L. CARNEY,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
ZHI WANG,
Petitioner,
v. 18-800
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Louis H. Klein, The Kasen Law
Firm, PLLC, Flushing, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Mary Jane Candaux,
Assistant Director; Edward E.
Wiggers, Senior Litigation
Counsel, 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 Zhi Wang, a native and citizen of the People’s
Republic of China, seeks review of a February 27, 2018,
decision of the BIA affirming a June 1, 2017, decision of an
Immigration Judge (“IJ”) denying his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Zhi Wang, No. A 202 039 152
(B.I.A. Feb. 27, 2018), aff’g No. A 202 039 152 (Immig. Ct.
N.Y. City June 1, 2017). We assume the parties’ familiarity
with the underlying facts and procedural history.
Under the circumstances of this case, we have reviewed
both the IJ’s and BIA’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). We review the agency’s legal
conclusions de novo and its factual findings under the
substantial evidence standard. See Y.C. v. Holder,
741 F.3d
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325, 332 (2d Cir. 2013). “[T]he administrative findings of
fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B).
Asylum and Withholding of Removal
As relevant to this appeal, to qualify for asylum and
withholding of removal, an “applicant must establish that
. . . political opinion was or will be at least one central
reason for” the claimed persecution. 8 U.S.C.
§ 1158(b)(1)(B)(i) (asylum); see also Matter of C-T-L, 25 I.
& N. Dec. 341, 346 (BIA 2010) (holding that the “one central
reason” standard also applies to withholding of removal).
Asylum or withholding “may be granted where there is more
than one motive for mistreatment, as long as at least one
central reason for the mistreatment is on account of a
protected ground.” Acharya v. Holder, 761 F.3d 289, 297 (2d
Cir. 2014) (internal quotation marks omitted). The agency’s
determination of whether an applicant has shown a nexus
between his alleged mistreatment and a protected ground is
reviewed for substantial evidence. Edimo-Doualla v.
Gonzales,
464 F.3d 276, 282–83 (2d Cir. 2006).
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Substantial evidence supports the agency’s determination
that the harm Wang suffered was not on account of a protected
ground. Much of Wang’s testimony supports the IJ’s
conclusion that the government officials’ actions were
motivated by their desire to secure the government buildings.
The agency could reasonably conclude that the security guards
were motivated to beat Wang and his neighbors because they
charged the guards and entered a property without permission.
As to the second incident, after Wang accused officials
of embezzling government money and was detained for
approximately 12 hours, the police told him not to go back to
the demolition relocation department to petition again.
After the third incident, Wang was accused of interfering
with the conduct of official business. As the IJ’s decision
acknowledged, see Certified Administrative Record 48,
retaliation against a person for petitioning the government
for redress can constitute persecution on the basis of
political opinion. Under the circumstances of this case,
however, the IJ was not required to draw the inference that
the officials desired to punish Wang because he petitioned
the government. Siewe v. Gonzales, 480 F.3d 160, 167 (2d
Cir. 2007) (“Decisions as to which of competing inferences to
4
draw are entirely within the province of the trier of fact.”
(internal alterations and quotation marks omitted).
Moreover, although Wang accused certain officials of
corruption, there is no indication that his accusations were
“directed toward a governing institution,” as opposed to
“isolated, aberrational acts of greed or malfeasance.”
Yueqing Zhang v. Gonzales, 426 F.3d 540, 548 (2d Cir. 2006)
(internal quotation marks omitted).
Accordingly, the IJ reasonably concluded that Wang did
not show that the officials were motivated by his political
opinion or their perception of his opinion, as opposed to
their own security concerns. Moreover, although “prosecution
that is pretext for political persecution is not on account
of law enforcement,” Jin Jin Long v. Holder, 620 F.3d 162,
166 (2d Cir. 2010), the IJ’s conclusion that the government’s
actions were a legitimate law enforcement response is
reasonable, particularly given the brevity of Wang’s
detention.
Substantial evidence supports the agency’s determination
that Wang failed to establish a nexus between the harm he
suffered and his political opinion. Because Wang failed to
5
demonstrate the required nexus, the agency did not err in
denying asylum and withholding of removal.
CAT
To be eligible for CAT relief, an applicant must show
“that it is more likely than not” that he will be tortured in
his country of removal. 8 C.F.R. § 1208.16(c)(2). “Torture
is defined as any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a
person . . . 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).
Substantial evidence supports the agency’s denial of CAT
relief. The agency reasonably determined that the past harm
that Wang suffered did not qualify as torture. Wang
testified that his hand was injured during the first incident
when the guards attempted to prevent him and his neighbors
from entering the building. After the third incident, he was
harassed and was required to report weekly to the police for
“self-criticism and re-education.” Certified Administrative
Record 72. Although undoubtedly unpleasant, and perhaps
unjustified, this harm does not rise to the level of torture.
Additionally, Wang did not testify that authorities are still
6
looking for him in China. Accordingly, the agency did not
err in determining that Wang failed to demonstrate that it
was more likely than not that he would be tortured if he
returned to China.
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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