Kyaw Myo Thein v. Holder , 363 F. App'x 122 ( 2010 )


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  •          08-5939-ag
    Thein v. Holder
    BIA
    Ferris, IJ
    A098 975 489
    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 Daniel Patrick Moynihan
    3       United States Courthouse, 500 Pearl Street, in the City of
    4       New York, on the 1 st day of February, two thousand ten.
    5
    6       PRESENT:
    7                REENA RAGGI,
    8                DEBRA ANN LIVINGSTON,
    9                GERARD E. LYNCH,
    10                         Circuit Judges.
    11       _________________________________________
    12
    13       KYAW MYO THEIN,
    14                Petitioner,
    15
    16                         v.                                   08-5939-ag
    17                                                              NAC
    18       ERIC H. HOLDER, JR., 1 UNITED STATES
    19       ATTORNEY GENERAL, UNITED STATES
    20       CITIZENSHIP AND IMMIGRATION SERVICES,
    21                Respondents.
    22       _________________________________________
    23
    24
    25
    26
    1
    Pursuant to Federal Rule of Appellate Procedure
    43(c)(2), Attorney General Eric. H. Holder, Jr. is
    automatically substituted for former Attorney General
    Michael B. Mukasey as respondent in this case.
    1   FOR PETITIONER:         Patrick Wang, New York, New York.
    2
    3   FOR RESPONDENTS:        Michael F. Hertz, Acting Assistant
    4                           Attorney General; Anthony C. Payne,
    5                           Senior Litigation Counsel; Tiffany
    6                           Walters Kleinert, Trial Attorney,
    7                           Office of Immigration Litigation,
    8                           United States Department of Justice,
    9                           Washington, D.C.
    10
    11       UPON DUE CONSIDERATION of this petition for review of a
    12   Board of Immigration Appeals (“BIA”) decision, it is hereby
    13   ORDERED, ADJUDGED, AND DECREED that the petition for review
    14   is GRANTED in part and DISMISSED in part.
    15       Petitioner Kyaw Myo Thein, a native and citizen of
    16   Burma, 2 seeks review of the November 7, 2008 order of the
    17   BIA, affirming the February 21, 2007 decision of Immigration
    18   Judge (“IJ”) Noel Ferris, which pretermitted his application
    19   for asylum and denied his application for withholding of
    20   removal and relief under the Convention Against Torture
    21   (“CAT”).   In re Kyaw Myo Thein, No. A098 975 489 (B.I.A.
    2
    In 1989, the military regime in control of Burma
    declared that the country would henceforth be known as
    “Myanmar.” However, both Thein and the agency refer to the
    country as “Burma,” and, according to the CIA’s World
    Factbook, the name “Myanmar” “was not approved by any
    sitting legislature in Burma, and the U.S. Government did
    not adopt the name.” CIA, The World Factbook - Burma,
    https://www.cia.gov/library/publications/the-world-
    factbook/geos/bm.html. Accordingly, we refer to Thein’s
    native country as “Burma.”
    2
    1    Nov. 7, 2008), aff’g A098 975 489 (Immig. Ct. N.Y. City Feb.
    2    21, 2007).    We assume the parties’ familiarity with the
    3    underlying facts and procedural history of the case.
    4         When the BIA adopts the decision of the IJ and
    5    supplements the IJ’s decision, this Court reviews the
    6    decision of the IJ as supplemented by the BIA.    Yan Chen v.
    7    Gonzales, 
    417 F.3d 268
    , 271 (2d Cir. 2005).    We review the
    8    agency’s factual findings under the substantial evidence
    9    standard.    
    8 U.S.C. § 1252
    (b)(4)(B); see also Manzur v. U.S.
    10   Dep’t of Homeland Sec., 
    494 F.3d 281
    , 289 (2d Cir. 2007).
    11   Questions of law and the application of law to undisputed
    12   fact are reviewed de novo.    Bah v. Mukasey, 
    529 F.3d 99
    , 110
    13   (2d Cir. 2008).
    14   I.   Asylum: One-Year Bar to Jurisdiction
    15        Title 8, Section 1158(a)(3) of the United States Code
    16   provides that no court shall have jurisdiction to review the
    17   agency’s finding that an asylum application was untimely
    18   under 
    8 U.S.C. § 1158
    (a)(2)(B), or the Attorney General’s
    19   finding of neither changed nor extraordinary circumstances
    20   excusing the untimeliness under 
    8 U.S.C. § 1158
    (a)(2)(D).
    21   Notwithstanding that provision, however, we retain
    22   jurisdiction to review constitutional claims and questions
    3
    1    of law.   See 
    8 U.S.C. § 1252
    (a)(2)(D).
    2        Here, Thein argues that he filed his asylum application
    3    within a reasonable period after his changed circumstances.
    4    Because that argument essentially challenges the agency’s
    5    exercise of discretion, it presents neither a constitutional
    6    claim nor a question of law.    See Xiao Ji Chen v. U.S. Dep’t
    7    of Justice, 
    471 F.3d 315
    , 328-29 (2d Cir. 2006).
    8    Accordingly, we dismiss the petition for review to the
    9    extent Thein challenges the pretermission of his untimely
    10   asylum application.    See 
    8 U.S.C. § 1158
    (a)(3).
    11   II. Withholding of Removal
    12       In its decision, the BIA concluded that the IJ had not
    13   made an explicit credibility determination and stated that
    14   it would “presume that [Thein] is credible.”    Despite that
    15   statement, however, the BIA plainly disbelieved aspects of
    16   Thein’s claim.   For example, as the IJ had done, the BIA
    17   called into question Thein’s claim that he feared future
    18   persecution on account of his recent dissemination of anti-
    19   government materials because he omitted that claim from his
    20   written application.    Citing two of this Court’s decisions
    21   concerning adverse credibility determinations, the BIA
    22   called the omission “significant.”    Similarly, the BIA
    4
    1    devoted a paragraph of its decision to the IJ’s findings
    2    concerning the absence of corroborating evidence --
    3    specifically, the absence of a letter from Thein’s wife.
    4    Yet this portion of the IJ’s decision also concerned Thein’s
    5    credibility.   Moreover, the BIA stated that Thein had
    6    “admitted to leaving [Burma] because he could make more
    7    money working in the U.S.”    Again, a finding that Thein came
    8    to the United States to make money as opposed to fleeing
    9    persecution calls into question the subjective nature of
    10   Thein’s claim —- whether he actually fears persecution as
    11   opposed to whether his fear is objectively reasonable even
    12   if subjectively held.    Viewing the BIA’s decision as a
    13   whole, it appears to have purported to assume Thein’s
    14   credibility on one hand, while calling his credibility into
    15   question on the other.    While the record may reveal reasons
    16   to question Thein’s credibility, having found that the IJ
    17   did not make a sufficiently explicit adverse credibility
    18   determination, see 
    8 U.S.C. § 1158
    (b)(1)(B)(iii), the BIA
    19   was not free to make its own.       See Fen Yong Chen v. BCIS,
    20   
    470 F.3d 509
    , 514-15 (2d Cir. 2006).
    21       The inconsistency between the BIA’s statement that it
    22   would presume the credibility of Thein’s testimony and its
    5
    1    actual analysis of the record is apparent throughout the
    2    agency’s assessment whether Thein satisfied his burden of
    3    proof.   The BIA relied in part, for example, on the
    4    conclusion that Thein’s family remained unharmed in Burma in
    5    determining that he had not made out a withholding claim.
    6    Thein testified, however, that he had disseminated anti-
    7    government materials in Burma.    If this testimony is
    8    presumed to be credible, a burden of proof analysis relying
    9    on the fact that his family members had not been harmed
    10   would require some assessment whether Thein’s family members
    11   are similarly situated to him in this regard.    See Tian-Yong
    12   Chen v. U.S. INS, 
    359 F.3d 121
    , 127-28 (2d Cir. 2004);
    13   Matter of A-E-M-, 
    21 I. & N. Dec. 1157
    , 1170-71 (BIA 1998).
    14   The BIA failed to perform such an assessment or to
    15   acknowledge Thein’s testimony that his wife had informed him
    16   that the authorities had twice searched her home, telling
    17   her that he was wanted for distributing subversive
    18   literature and stating that if he returned, he would be
    19   arrested.
    20       As we have stated, our “review is frustrated when it is
    21   unclear whether the agency has made an adverse credibility
    22   determination.” Zaman v. Mukasey, 
    514 F.3d 233
    , 237 (2d Cir.
    6
    1    2008).   Here, because the BIA’s decision is sufficiently
    2    ambiguous on this point as to frustrate meaningful review,
    3    remand is required on this basis alone.    We thus need not
    4    consider Thein’s argument that the IJ’s conduct affected the
    5    outcome of his hearing.   Further, because Thein does not
    6    challenge the denial of his application for relief under the
    7    CAT in his brief, the CAT claim is waived.    See Yueqing
    8    Zhang v. Gonzales, 
    426 F.3d 540
    , 541 n.1 (2d Cir. 2005).
    9        For the foregoing reasons, the petition for review is
    10   GRANTED in part and DISMISSED in part.    The case is REMANDED
    11   for further proceedings consistent with this order.    As we
    12   have completed our review, any stay of removal that the
    13   Court previously granted in this petition is VACATED, and
    14   any pending motion for a stay of removal in this petition is
    15   DISMISSED as moot. Any pending request for oral argument in
    16   this petition is DENIED in accordance with Federal Rule of
    17   Appellate Procedure 34(a)(2) and Second Circuit Local Rule
    18   34(b).
    19                               FOR THE COURT:
    20                               Catherine O’Hagan Wolfe, Clerk
    21
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    7