Sun v. Garland ( 2023 )

20-1567
Sun v. Garland
BIA
Douchy, IJ
A205 192 825
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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 10th day of February, two thousand twenty-
5 three.
6
7 PRESENT:
8 RAYMOND J. LOHIER, JR.,
9 WILLIAM J. NARDINI,
10 EUNICE C. LEE,
11 Circuit Judges.
12 _____________________________________
13
14 YONGCHENG SUN,
15 Petitioner,
16
17 v. 20-1567
18 NAC
19 MERRICK B. GARLAND, UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gary J. Yerman, Esq., New York,
25 NY.
26
27 FOR RESPONDENT: Brian Boynton, Acting Assistant
28 Attorney General; Ernesto H.
1 Molina, Jr., Deputy Director;
2 Nancy N. Safavi, Trial Attorney,
3 Office of Immigration Litigation,
4 United States Department of
5 Justice, Washington, DC.
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED in part and GRANTED in part.
10 Petitioner Yongcheng Sun, a native and citizen of the
11 People’s Republic of China, seeks review of a May 1, 2020
12 decision of the BIA affirming a July 16, 2018 decision of an
13 Immigration Judge (“IJ”) denying his application for asylum,
14 withholding of removal, and relief under the Convention
15 Against Torture (“CAT”). In re Yongcheng Sun, No. A 205 192
16 825 (B.I.A. May 1, 2020), aff’g No. A 205 192 825 (Immig. Ct.
17 N.Y.C. July 16, 2018). We assume the parties’ familiarity
18 with the underlying facts and procedural history.
19 We have considered both the IJ’s and the BIA’s opinions.
20 See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528
21 (2d Cir. 2006). The standards of review are well
22 established. See 8 U.S.C. § 1252(b)(4)(B) (“the
23 administrative findings of fact are conclusive unless any
24 reasonable adjudicator would be compelled to conclude to the
2
1 contrary”); Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014)
2 (reviewing factual findings for substantial evidence and
3 questions of law de novo). We deny the petition as to asylum
4 and withholding of removal, but remand for further
5 consideration or explanation of Sun’s CAT claim.
6 I. Asylum and Withholding of Removal
7 An asylum applicant has the burden to show that he
8 suffered past persecution or has a well-founded fear of future
9 persecution “on account of” a protected ground. 8 U.S.C.
10 §§ 1101(a)(42), 1158(b)(1)(B)(i). Here, Sun sought to prove
11 that Chinese authorities targeted him for a perceived anti-
12 corruption political opinion. Accordingly, Sun had the
13 burden to “provide some evidence, direct or circumstantial,”
14 that his persecutors were motivated by his anti-corruption
15 beliefs. INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992).
16 “A political opinion is imputed when an individual has a
17 political opinion attributed to him—correctly or incorrectly—
18 on account of his beliefs, actions or associations.” Ruqiang
19 Yu v. Holder, 693 F.3d 294, 299 (2d Cir. 2012) (quotation
20 marks omitted). While opposing corruption can be understood
21 as expressing a political opinion, it does not qualify as a
3
1 protected ground for the purposes of asylum and withholding
2 of removal when it amounts to “challeng[ing] . . . isolated,
3 aberrational acts of greed or malfeasance.” Yueqing Zhang
4 v. Gonzales, 426 F.3d 540, 548 (2d Cir. 2005).
5 The agency reasonably found that Sun did not show that
6 police or local officials targeted him because of a political
7 opinion. Sun testified that he did not belong to any
8 political organization, movement, or labor union in China.
9 He further testified that he was employed by a private company
10 and that his boss told him that he had police arrest and beat
11 him for reporting to local government officials that the
12 company was using subpar materials. According to Sun, his
13 boss also told him that he had gone to school with the local
14 public security bureau chief and paid the police to protect
15 him from complaints like Sun’s. Sun reported only one
16 instance of corruption, not continuing issues and problems.
17 On this record, the agency reasonably found that the police
18 did not target Sun because of a political opinion, but rather
19 because his boss bribed them to do so. Having failed to
20 establish a nexus to a protected ground, Sun failed to meet
4
1 his burden for asylum and withholding of removal. See 8
2 U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).
3 II. CAT Relief
4 To obtain CAT relief, an applicant must show that he
5 would “more likely than not” be tortured by or with the
6 acquiescence of government officials. See 8 C.F.R.
7 §§ 1208.16(c)(2), 1208.18(a). “Torture is an extreme form
8 of cruel and inhuman treatment . . . specifically intended to
9 inflict severe physical or mental pain or suffering.”
10 8 C.F.R. § 1208.18(a)(2), (5). The agency must consider all
11 evidence relevant to the possibility of future torture,
12 including evidence of past torture, the applicant’s ability
13 to relocate, and violations of human rights within the country
14 of removal. 8 C.F.R. § 1208.16(c)(3).
15 Sun stated that his police beatings began in August 2011
16 and ended in January 2012 when he arrived in the United
17 States. He was initially arrested and beaten until he was
18 unconscious. After the officers released him, they required
19 him to report to them on a weekly basis. During those
20 reports, officers yelled at him and slapped and kicked him
21 hard enough to cause swelling and bruising. Sun’s wife and
5
1 parents told him that the police looked for him in July 2018,
2 a month before his hearing, and that officers beat his wife
3 when she complained about their harassment.
4 We remand because the decision below is unclear as to
5 why the agency denied Sun’s CAT claim. “Despite our
6 generally deferential review of IJ and BIA opinions, we
7 require a certain minimum level of analysis . . . if judicial
8 review is to be meaningful.” Poradisova v. Gonzales, 420
9 F.3d 70, 77 (2d Cir. 2005). Here, the agency has not provided
10 such analysis. The IJ apparently disbelieved Sun’s
11 allegation that the police continued to look for him, but
12 still found him credible. Moreover, the IJ’s statement that
13 “there is nothing in the record to indicate that [the
14 government] would torture” Sun does not specify whether the
15 IJ found a lack of evidence that police would target Sun or
16 concluded that Sun’s treatment would not rise to the level of
17 torture. Because the agency did not provide sufficient
18 reasoning to allow for judicial review, we remand for further
19 review of the CAT claim. See Poradisova, 420 F.3d at 77
20 (“Inadequate analysis or failure to consider important
21 evidence . . . [is] not excused by the fact that a
6
1 hypothetical adjudicator, applying the law correctly, might
2 also have denied the petition for asylum.”) (quotation marks
3 omitted).
4 For the foregoing reasons, the petition for review is
5 DENIED in part as to asylum and withholding of removal and
6 GRANTED and REMANDED in part as to Sun’s CAT claim. Sun’s
7 motion for a stay of removal is DENIED as moot.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe,
10 Clerk of Court
7