Bing Xie v. Holder , 389 F. App'x 26 ( 2010 )

08-5103-ag
Xie v. Holder
IJ Straus
BIA
A097 670 218
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 26 th day of July, two thousand ten.
PRESENT: REENA RAGGI,
DEBRA ANN LIVINGSTON,
Circuit Judges. *
_________________________________________
BING XIE,
Petitioner,
v. 08-5103-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Carrol L. Lucht, Stephen Wizner, The
Jerome N. Frank Legal Services
Organization, New Haven,
*
Circuit Judge Ralph K. Winter, originally a member of
the panel, recused himself from this case. The remaining two
panel members, who are in agreement, decide this motion
pursuant to Second Circuit Internal Operating Procedure E(b).
Connecticut. 1
FOR RESPONDENT: Tony West, Assistant Attorney
General; Aviva L. Poczter, Senior
Litigation Counsel; Jesse Lloyd
Busen, Trial Attorney, Office of
Immigration Litigation, 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 DISMISSED in part, and DENIED in part.
Bing Xie, a native and citizen of the People’s Republic
of China, seeks review of an October 10, 2008 order of the BIA
reversing the May 3, 2007 decision of Immigration Judge (“IJ”)
Michael W. Straus and denying her application for relief under
the Convention Against Torture (“CAT”). In re Bing Xie, No.
A097 670 218 (B.I.A. Oct. 10, 2008), rev’g No. A097 670 218
(Immig. Ct. Hartford May 3, 2007). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
Under the circumstances of this case, we review only the
1
Petitioner moves to allow two students, Brian Soucek and
Daniel Winik, to appear before the Court. However, as counsel
concedes, these students do not yet have the four semesters of
full-time legal study required in order to appear. See 2d
Cir. Local Rule 46.1(e)(3)(A). The motion is therefore
denied.
2
decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268,
271 (2d Cir. 2005). We review de novo questions of law,
including determinations as to what evidence will suffice to
sustain an applicant’s burden of proof. See Salimatou Bah v.
Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); Jin Shui Qiu v.
Ashcroft, 329 F.3d 140, 146 n.2 (2d Cir. 2003).
1. Jurisdiction
Under 8 U.S.C. §§ 1252(a)(2)(C) and (D), our jurisdiction
to review final orders of removal against aliens, such as Xie,
who are removable by reason of having been convicted of an
aggravated felony is limited to constitutional claims or
questions of law. See Gertsenshteyn v. U.S. Dep’t of Justice,
544 F.3d 137, 142 (2d Cir. 2008); Vargas-Sarmiento v. U.S.
Dep’t of Justice, 448 F.3d 159, 163 (2d Cir. 2006). This
court has not yet decided whether 8 U.S.C. § 1252(a)(2)(C)’s
jurisdictional restrictions also apply to CAT claims for
deferral of removal. See De La Rosa v. Holder, 598 F.3d 103,
107 (2d Cir. 2010). We need not do so here, however, as Xie’s
appeal presents only questions of law.
2. Xie’s Failure to Demonstrate a Likelihood of Torture
a. Official Acquiescence
Xie argues that the BIA erred as a matter of law in
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concluding that she failed to demonstrate official
acquiescence in her torture at the hands of “rogue agents” of
the Public Security Bureau. See 8 C.F.R. § 1208.18(a)(1).
Specifically, she faults the BIA’s (1) insistence upon central
government acquiescence without regard to whether local
officials might acquiesce in her torture, and (2) failure to
recognize a presumption that infliction of severe pain or
suffering by rogue public officials constitutes torture. We
are not persuaded.
The BIA concluded that “the record evidence does not show
that the Chinese government is willfully blind to the conduct
of such rogue agents,” referencing the standard set forth in
Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004). In re
Bing Xie, No. A097 670 218, at 2. We do not construe the
BIA’s reference to the “Chinese government” to limit its
analysis to the central government alone, particularly in
light of the BIA’s citation to Khouzam’s holding that torture
requires only that some “government officials know of or
remain willfully blind to an act and thereafter breach their
legal responsibility to prevent it.” 361 F.3d at 171(emphasis added).
Further, the record does not warrant a presumption of
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official willful blindness to acts of torture by rogue agents
of the Public Security Bureau. Here, there was no finding of
routine torture for seemingly official purposes as in Khouzam,
See id. at 169-71. Rather, Xie submits, without any
historical proof, that the leader of the smuggling operation
in which she participated will arrange to have her tortured on
account of a particular unpaid debt. On this record, we
detect no legal error in the BIA’s conclusion that Xie failed
to adduce evidence sufficient to support her claim of
government acquiescence in the feared conduct, should it
occur. 2
b. Likelihood of Torture
Xie submits that the BIA erred in applying an overly
stringent standard in concluding that she failed to
demonstrate a likelihood that she will be tortured if removed
to China. Specifically, she submits that the BIA improperly
2
De La Rosa v. Holder, 598 F.3d 103, warrants no
different conclusion. Unlike in De La Rosa, the BIA here did
not confront evidence that someone was intent on killing Xie
or that the Chinese government was powerless to prevent such
a killing. 598 F.3d at 110. Further, insofar as Xie argues
for the first time in her March 2, 2010 28(j) letter that the
BIA conducted impermissible de novo review of the IJ’s factual
findings on issues other than Xie’s credibility, we deem the
argument waived and decline to address it. See Shunfu Li v.
Mukasey, 529 F.3d 141, 146 (2d Cir. 2008); United States v.
Bortnovsky, 820 F.2d 572, 575 (2d Cir. 1987).
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based its conclusion on her failure to demonstrate that
similarly situated individuals – i.e., other “repatriated,
convicted alien smuggler[s],” In re Bing Xie, No. A097 670
218, at 3 – are tortured in China. The record does not support
this claim.
The BIA held that Xie failed to carry “her burden of
showing that it is more likely than not that she will be
tortured if removed to China,” id. (citing 8 C.F.R.
§ 1208.16(c)(2)), thereby citing the appropriate standard.
Although Xie testified that she feared torture and presented
evidence indicating that participants in the smuggling
operation were connected with the public security office, she
offered no evidence to demonstrate that the feared torture was
likely. It was in this context that the BIA focused on the
lack of comparative evidence that others in similar
circumstances had been tortured. See Wang v. Ashcroft, 320
F.3d 130, 144 (2d Cir. 2003) (upholding denial of CAT relief
based on lack of evidence that military deserters generally
are tortured in China despite credible testimony that
petitioner (1) was beaten following first desertion attempt
and (2) was threatened with death if he deserted again). 3
3
Niang v. Mukasey, 511 F.3d 138 (2d Cir. 2007), cited by
petitioner for the proposition that the BIA must provide
6
Accordingly, we identify no legal error in the BIA’s standard
of review.
3. The Failure to Refer Petition to a Three-Member
Panel
Xie argues that the BIA violated its own regulations
under 8 C.F.R. § 1003.1(e) when it vacated the decision of the
IJ in a one-member order as opposed to referring the case for
decision by a three-member panel. We lack jurisdiction to
review this discretionary administrative determination. See
Guyadin v. Gonzales, 449 F.3d 465, 469-70(2d Cir. 2006);
Kambolli v. Gonzales, 449 F.3d 454, 461 (2d Cir. 2006). That
the BIA reversed, rather than affirmed, the IJ’s decision
warrants no different conclusion. See 8 C.F.R. § 1003.1(e)(6)
(instructing that case “may be assigned for review by a three-
member panel” if any of six specified circumstances, including
need to reverse IJ, is present) (emphasis added). In any
event, the challenged decision was issued pursuant to remand
from this court for reconsideration of the BIA’s 2007 reversal
of the IJ, which was issued by a three-member panel. See Bing
specific reasons for relying on the absence of corroborative
evidence, is inapposite. Here, unlike in Niang, the agency
made no adverse credibility determination and did not seek
corroboration of otherwise credible testimony; rather the BIA
accepted Xie’s fear of mistreatment but concluded that it was
insufficient to demonstrate a likelihood of torture. In re
Bing Xie, No. A097 670 218, at 3.
7
Xie v. Mukasey, No. 07-4217-ag (2d Cir. May 28, 2008)
(stipulation and order). Accordingly, this portion of Xie’s
petition is dismissed.
4. Conclusion
Because we detect no error in the BIA’s dispositive
determination that Xie did not establish a likelihood of
torture if returned to China, we decline to address her
challenge to the IJ’s determination that she was convicted of
a “particularly serious crime” barring her from withholding of
removal under the CAT pursuant to 8 U.S.C.
§ 1231(b)(3)(B)(ii).
For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part. As we have completed
our review, any stay of removal that the Court previously
granted in this petition is VACATED, and any pending motion
for a stay of removal in this petition is DISMISSED as moot.
The pending motion for leave to allow two law students to
appear is DENIED in accordance with Local Rule 46.1(e)(3)(A).
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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