Filed: Apr. 21, 2016
Latest Update: Mar. 02, 2020
Summary: 12-2124 Li v. Lynch BIA Gordon-Uruakpa, IJ A087 441 727 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
Summary: 12-2124 Li v. Lynch BIA Gordon-Uruakpa, IJ A087 441 727 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 ..
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12-2124
Li v. Lynch
BIA
Gordon-Uruakpa, IJ
A087 441 727
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 21st day of April, two thousand sixteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 SHUYI LI,
14 Petitioner,
15
16 v. 12-2124
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: June Zhou, Deerfield Beach, Florida.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Christopher C. Fuller,
27 Deputy Chief; Alison Marie Igoe,
28 Senior Counsel, National Security
29 Unit, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Shuyi Li, a native and citizen of the People’s Republic
6 of China, seeks review of an April 17, 2012, decision of the
7 BIA affirming the October 9, 2009, decision of Immigration
8 Judge (“IJ”) Vivienne Gordon-Uruakpa, denying him asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Shuyi Li, No. A087 441 727
11 (B.I.A. Apr. 17, 2012), aff’g No. A087 441 727 (Immig. Ct.
12 N.Y. City Oct. 9, 2009). We assume the parties’ familiarity
13 with the underlying facts and procedural history in this
14 case.
15 We have reviewed both the IJ’s and the BIA’s opinions
16 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d
17 233, 237 (2d Cir. 2008). The applicable standards of review
18 are well-established. See Xu Sheng Gao v. U.S. Att’y Gen.,
19
500 F.3d 93, 98 (2d Cir. 2007). The agency did not err in
20 concluding that Li was statutorily barred from asylum and
21 withholding of removal as a persecutor.
22
2
1 Under Immigration and Nationality Act (“INA”)
2 §§ 208(b)(2)(A)(i) and 241(b)(3)(B)(i), 8 U.S.C.
3 §§ 1158(b)(2)(A)(i), and 1231(b)(3)(B)(i), an alien who has
4 “ordered, incited, assisted, or otherwise participated in
5 the persecution of any person on account of race, religion,
6 nationality, membership in a particular social group, or
7 political opinion” is ineligible for asylum and withholding
8 of removal. These provisions are known collectively as the
9 “persecutor bar.” Xu Sheng Gao, 500 F.3d at 98.
10 Four elements must exist before the persecutor bar
11 applies. See Balachova v. Mukasey,
547 F.3d 374, 384 (2d
12 Cir. 2008). “First, the alien must have been involved in
13 acts of persecution.”
Id. Second, a “nexus must be shown
14 between the persecution and the victim’s race, religion,
15 nationality, membership in a particular social group, or
16 political opinion.”
Id. Third, if the alien “did not
17 incite, order, or actively carry out the persecutory acts,
18 [he] must have assisted the persecution.”
Id. (internal
19 quotation marks omitted). Finally, the applicant must have
20 had “sufficient knowledge that his . . . actions [would]
21 assist in persecution.”
Id. at 385.
22
3
1 At issue here is whether substantial evidence supports
2 the conclusion that Li knowingly committed acts that
3 assisted in forced abortions. See id. at 384-85; see also
4 Yan Yan Lin v. Holder,
584 F.3d 75, 80 (2d Cir. 2009) (“It
5 is settled law that forced abortion is persecution on
6 account of political opinion.”). This Court has found that
7 when an individual’s “conduct was active and had direct
8 consequences for the victims, . . . it was ‘assistance in
9 persecution,’[but] [w]here the conduct was tangential to the
10 acts of oppression and passive in nature, . . . it [did not]
11 amount[] to such assistance.” Zhang Jian Xie v. INS, 434
12 F.3d 136, 143 (2d Cir. 2006).
13 Li’s testimony reveals that, as a family planning
14 clerk, he knew that reporting women who were in violation of
15 the family planning policy to the director of his office
16 would result in those women suffering forced abortions.
17 Furthermore, Li testified that he alone reported at least
18 one family planning violation that directly led to a forced
19 abortion. He also testified that he conducted two other
20 investigations, in which other family planning clerks were
21 involved, that led to women being reported for violations
22 and forced to undergo abortions. Thus, Li’s testimony
4
1 supports the agency’s conclusion that he knowingly played a
2 direct and consequential role in persecution. See id.; see
3 also Yan Yan Lin, 584 F.3d at 81 (describing as tangential
4 those acts that “did not contribute to, or facilitate, the
5 victims’ forced abortions in any direct or active way
6 because they did not cause the abortions, nor did they make
7 it more likely that they would occur.” (internal quotation
8 marks and alterations omitted)).
9 Moreover, even if voluntariness were relevant to the
10 applicability of the persecutor bar, which it is not, there
11 is no support for Li’s contention that he had to work as a
12 family planning clerk to support his family. In fact, Li
13 testified that he remained in that position for the salary
14 and government insurance although he could have found work
15 in a private company and bought private insurance. See
16
Balachova, 547 F.3d at 385; see also Zhang Jian Xie,
434
17 F.3d at 143.
18 We have suggested that redemptive acts might mitigate
19 assistance in persecution in the persecutor bar context.
20 See Zhang Jian
Xie, 434 F.3d at 143-44. However, the agency
21 did not err in concluding that the persecutor bar applied to
22 Li regardless of the fact that he declined to report many
23 family planning violators, particularly given his knowledge
5
1 of the consequences of the reports he had made and the fact
2 that he did so as part of his voluntary employment. See id.
3 Accordingly, the evidence supports the agency’s
4 conclusion that Li’s conduct constituted assistance in
5 persecution rendering him statutorily ineligible for asylum
6 and withholding of removal pursuant to the persecutor bar.
7 See 8 U.S.C. §§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i); see also
8
Balachova, 457 F.3d at 384-85; Zhang Jian
Xie, 434 F.3d at
9 143. Li does not challenge the IJ’s denial of CAT relief.
10 For the foregoing reasons, the petition for review is
11 DENIED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
6
