Filed: Jun. 10, 2013
Latest Update: Mar. 28, 2017
Summary: 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 NOTATIO
Summary: 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..
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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, 417 F.3d 268, 271 (2d Cir.
2005); Xue Hong Yang v. U.S. Dep’t of Justice,
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); Yanqin Weng
v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
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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).
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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,
656 F.3d 1047, 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
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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, 502 U.S. 478, 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
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