11-2470
    Wan v. Holder
                                                                                  BIA
                                                                              Lamb, IJ
                                                                          A099 990 655
                     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 10th day of June, two thousand thirteen.

    PRESENT:
             ROBERT A. KATZMANN,
             REENA RAGGI,
             GERARD E. LYNCH,
                  Circuit Judges.
    ______________________________________
    GUOPING WAN, AKA GUO PING WAN, AKA
    SHIFENG WANG,
             Petitioner,

                                                           11-2470
                    v.                                     NAC

    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:               Dehai Zhang, Flushing, N.Y.
    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Stephen J. Flynn, Assistant
                                  Director; Imran R. Zaidi, Trial
                                  Attorney, Office of Immigration
                                  Litigation, Civil Division, 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, Guoping Wan, a native and citizen of the

People’s Republic of China, seeks review of a May 31, 2011,

decision of the BIA affirming the January 6, 2009, decision

of Immigration Judge (“IJ”) Elizabeth A. Lamb pretermitting

his asylum application and denying his application for

withholding of removal and relief under the Convention

Against Torture (“CAT”).     In re Guoping Wan, No. A099 990

655 (B.I.A. May 31, 2011), aff’g     No. A099 990 655 (Immig.

Ct. N.Y. City Jan. 6, 2009).    We assume the parties’

familiarity with the underlying facts and procedural history

of the case.

       Under the circumstances of this case, we have reviewed

the decision of the IJ as modified and supplemented by the

BIA.    See Yan Chen v. Gonzales, 

, 271 (2d Cir.

2005); Xue Hong Yang v. U.S. Dep’t of Justice, 

,

522 (2d Cir. 2005).    The applicable standards of review are

well-established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

v. Holder, 

, 513 (2d Cir. 2009).




                                2
I.   Asylum

     As a preliminary matter, Wan concedes that this Court

lacks jurisdiction to review the pretermission of his asylum

application unless he raises a colorable constitutional

claim or question of law.   See 8 U.S.C. § 1252(a)(2)(C),(D).

Wan argues that the IJ applied an incorrect legal standard

in finding that his I-140 Petition and his fear of filing an

asylum application under his true name did not constitute

extraordinary circumstances excusing the untimely filing of

his application.   While his challenge raises a question of

law, his argument lacks merit.

     Although Wan filed an I-140 Petition within the one-

year filing deadline, the approval of that petition did not

confer any lawful status, both because the approval was

later revoked due to Wan’s fraudulent representations and

because an approved visa petition only indicates visa

availability, not a lawful immigrant status.     See 8 U.S.C.

§§ 1155, 1255(a)(1).   The agency therefore correctly

determined that Wan did not maintain lawful nonimmigrant or

immigrant status excusing his delay in filing.    8 C.F.R.

§ 1208.4(a)(5)(iv) (listing as an extraordinary circumstance

the maintenance of a lawful nonimmigrant or immigrant

status).

                              3
    Even assuming that Wan’s reliance on the I-140 Petition

approval in delaying the filing of his asylum application

constituted an extraordinary circumstance, his nine-month

delay in filing the application after the revocation of his

I-140 Petition - regardless of his intention to file that

application earlier - was presumptively not reasonable.     See

8 C.F.R. § 1208.4(a)(5) (providing that an extraordinary

circumstance may excuse a late filing if the application was

filed within a reasonable time thereafter); Singh v. Holder,

, 1056 (2d Cir. 2011) (noting that a delay of

six months or longer is presumptively unreasonable).

    The agency therefore did not err in pretermitting his

asylum application.   See 8 U.S.C. § 1158(a)(2).

II. Withholding of Removal and CAT Relief

    Wan argues that he established past persecution and a

well-founded fear of persecution on account of his political

opinion by demonstrating that, based on false allegations of

corruption, Chinese authorities arrested, detained and beat

him in order to elicit a confession that he accepted bribes.

Wan testified that a Communist Party official made the false

allegations in retaliation for Wan’s refusal to buy inferior

goods from factories belonging to the official’s relatives


                              4
and friends.   Accordingly, the IJ reasonably found that Wan

was not harmed on account of his political opinion or any

other protected ground, but instead because of his refusal

to buy the poor quality goods.    Cf.   I.N.S. v.   Elias

Zacarias, 

, 482 (1992) (noting that a petitioner

who refused to join guerrillas may have done so for a

variety of non-protected reasons).

    Wan also contends that his relocation to another

province in China did not bar him from eligibility for

relief because he was “like a fugitive” in his own country.

However, the regulations do not require that Wan prefer the

new province to which he would relocate, but rather that he

“could avoid a future threat to his . . . life or freedom by

relocating . . . .”   8 C.F.R. § 208.16(b)(1)(B).    Because

Wan worked unharmed in the Jiangsu province as a general

engineer for three years, the IJ reasonably determined that

he was ineligible for withholding of removal because he had

safely relocated within China.    See id.   Given Wan’s ability

to safely relocate within China, the agency did not err in

also denying CAT relief.   See 8 C.F.R. § 1208.16(c)(3)(ii)

(providing that an applicant’s ability to safely relocate

within his or her country may be assessed in determining the

likelihood of torture).

                              5
    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

for a stay of removal in this petition is DENIED as moot.



                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




                              6