Filed: Aug. 07, 2014
Latest Update: Mar. 02, 2020
Summary: 13-2851 Wu v. Holder BIA Hom, IJ A201 035 128 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: 13-2851 Wu v. Holder BIA Hom, IJ A201 035 128 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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13-2851
Wu v. Holder
BIA
Hom, IJ
A201 035 128
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 7th day of August, two thousand fourteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 QI CAO WU, a.k.a. CAO QI WU,
14 Petitioner,
15
16 v. 13-2851
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Michael Brown, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; David V. Bernal, Assistant
27 Director; Jesse M. Bless, Trial
28 Attorney, Civil Division, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Qi Cao Wu, a native and citizen of China,
6 seeks review of a July 11, 2013 or August 8, 2013 decision
7 of the BIA affirming a June 14, 2011, decision of an
8 Immigration Judge (“IJ”) denying Wu’s application for
9 asylum, withholding of removal and relief under the
10 Convention Against Torture (“CAT”). In re Qi Cao Wu, No.
11 A201 035 128 (B.I.A. July 11, 2013), aff’g No. A201 035 128
12 (Immig. Ct. N.Y. City June 14, 2011). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as modified by the BIA decision. See Yang
17 v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
18 The applicable standards of review are well established. 8
19 U.S.C. § 1252(b)(4)(B); see also Weng v. Holder,
562 F.3d
20 510, 513 (2d Cir. 2009).
21 In the main, Wu argues that the evidence adduced at his
22 merits hearing established that the police had mixed
2
1 motives: they beat and jailed him because he interfered with
2 his mother’s arrest, but also because he supported his
3 mother’s Falun Gong practice.
4 Wu applied for asylum in 2011; so, the REAL ID Act
5 applies. REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat.
6 231, 302 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)).
7 That Act provides that an asylum “applicant must establish
8 that race, religion, nationality, membership in a particular
9 social group, or political opinion was or will be at least
10 one central reason for persecuting the applicant.” 8 U.S.C.
11 § 1158(b)(1)(B)(i). In construing the “one central reason”
12 standard, the BIA held that “the protected ground . . .
13 cannot be incidental, tangential, superficial, or
14 subordinate to another reason for harm.” In re J-B-N & S-M,
15 24 I. & N. Dec. 208, 214 (BIA 2007) (internal quotation
16 marks omitted). This Court has upheld that analysis,
17 explaining that the REAL ID Act “makes clear that mixed
18 motives asylum claims continue to be viable.” Castro v.
19 Holder, 597 F.3d 93, 104 (2d Cir. 2010).
20 To prevail on such a claim, “an asylum applicant need
21 not show with absolute certainty why the events occurred,
22 but rather, only that the harm was motivated, in part, by an
3
1 actual or imputed protected ground.” Uwais v. U.S. Att’y
2 Gen., 478 F.3d 513, 517 (2d Cir. 2007) (citing Matter of
3 S-P-, 21 I. & N. Dec. 486, 494-95 (BIA 1996)). In
4 evaluating motive in a case in which “prosecution for an
5 offense may be a pretext for punishing an individual for his
6 political opinion, . . . the evidence must be evaluated . .
7 . to determine whether the motive for the abuse in the
8 particular case was directed toward punishing or modifying
9 perceived political views, as opposed to punishment for
10 criminal acts . . . [or] was motivated by some other reason
11 unrelated to asylum law.” Matter of S- P-, 21 I. & N. Dec.
12 at 493-94. “Evidence that punishment for a politically
13 related act would be disproportionate to the crime would
14 indicate persecution on grounds of political opinion rather
15 than prosecution.”
Id. at 493.
16 Wu did not need to establish that he was persecuted
17 “solely on account” of his support for Falun Gong. Osorio
18 v. I.N.S.,
18 F.3d 1017, 1028 (2d Cir. 1994). He did,
19 however, have the burden to “show that his persecutors
20 actually imputed a political opinion to him.” Sangha v.
21 INS,
103 F.3d 1482, 1489 (9th Cir. 1997). The agency
22 reasonably concluded that he failed to satisfy that burden.
23 Nothing in the record suggested that the police suspected
4
1 that he supported Falun Gong. At the merits hearing, he
2 testified that when the police arrived at the family home,
3 they wanted to arrest his mother because “some had reported”
4 her for practicing Falun Gong – not that anyone reported Wu
5 for supporting Falun Gong. His written asylum application
6 reported that while in jail “the police ferociously said I
7 dared to assault the police, and they should execute me by
8 shooting.” Similarly, at the merits hearing he testified
9 that his interrogators asked him why his mother practiced
10 Falun Gong and who introduced her to the practice, but
11 threatened him for having attacked the police – not for
12 having supported his mother’s Falun Gong practice. These
13 threats and questions do not suggest that the police knew
14 how Wu felt about Falun Gong and intended to arrest and beat
15 him on that basis. Indeed, Wu conceded that it would be
16 “correct to say the reason [he had] a conflict with the
17 police is because . . . he attacked them.” Moreover, Wu
18 never claimed that his punishment (jail and a fine) was
19 disproportionate to his crime (obstruction or resisting
20 arrest). See Matter of S- P-, 21 I. & N. Dec. at 493.
21 Given this record, the agency did not err in concluding that
22 Wu failed to carry his burden of showing that the police
23 imputed his mother’s political opinion to him.
5
1 Because Wu failed to demonstrate past persecution based
2 on a protected ground, he needed to show a well-founded fear
3 that he would be persecuted if returned to China. See 8
4 C.F.R. § 1208.13(b). Wu argues that there is a “reasonable
5 probability that he would be singled out by the Chinese
6 authorities.” His proof: he testified that his mother was
7 persecuted for being a Falun Gong practitioner, and he now
8 practices himself. The agency concluded that this was not
9 enough to show a reasonable probability that the authorities
10 “are either aware . . . or likely to become aware” of Wu’s
11 Falun Gong practice and persecute him as a result.
12 Hongsheng Leng v. Mukaskey, 528 F.3d 135, 143 (2d Cir.
13 2008). That was not error. The authorities may have
14 identified Wu’s mother as a Falun Gong practitioner; but it
15 would be “speculative at best” to infer that they will also
16 identify Wu. Jian Xing Huang v. INS,
421 F.3d 125, 129 (2d
17 Cir. 2005) (finding that a fear of future persecution is not
18 objectively reasonable if it lacks “solid support” in the
19 record and is merely “speculative at best”).
20 Having reasonably found that Lin failed to establish
21 eligibility for asylum, the agency did not err in denying
22 withholding of removal and relief under the CAT, as these
23 claims shared the same factual predicate. See Paul v.
6
1 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006); Yang v. U.S.
2 Dep’t of
Justice, 426 F.3d at 523.
3 For the foregoing reasons, the petition for review is
4 DENIED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
9
7
