Dai v. Barr ( 2020 )

18-3358
Dai v. Barr
BIA
Kolbe, IJ
A206 581 731
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 TO 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 23rd day of November, two thousand twenty.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 ROBERT D. SACK,
10 RICHARD C. WESLEY,
11 Circuit Judges.
12 _____________________________________
13
14 SHIZHUANG DAI,
15 Petitioner,
16
17 v. 18-3358
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Adedayo O. Idowu, Esq., New York,
25 NY.
26
27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
28 Assistant Attorney General; Greg
1 D. Mack, Senior Litigation
2 Counsel; Shahrzad Baghai, Office
3 of Immigration Litigation, United
4 States Department of Justice,
5 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 DISMISSED in part, and DENIED in part.
10 Petitioner Shizhuang Dai, a native and citizen of China,
11 seeks review of an October 18, 2018, decision of the BIA
12 affirming an October 17, 2017, decision of an Immigration
13 Judge (“IJ”) denying Dai’s application for asylum,
14 withholding of removal, and relief under the Convention
15 Against Torture (“CAT”). In re Shizhuang Dai, No. A206 581
16 731 (B.I.A. Oct. 18, 2018), aff’g No. A206 581 731 (Immig.
17 Ct. N.Y. City Oct. 17, 2017). We assume the parties’
18 familiarity with the underlying facts and procedural history.
19 We have reviewed the IJ’s decision as modified by the
20 BIA, and assume credibility as the BIA did. See Xue Hong
21 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
22 2005). We review the agency’s factual findings under the
23 substantial evidence standard, treating them as “conclusive
24 unless any reasonable adjudicator would be compelled to
2
1 conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see
2 also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). “We
3 review de novo questions of law and the application of law to
4 undisputed fact.” Salimatou Bah v. Mukasey, 529 F.3d 99, 110
5 (2d Cir. 2008).
6 I. Asylum
7 An asylum applicant must apply within one year of
8 arriving in the United States, or must show either “changed
9 circumstances which materially affect the applicant’s
10 eligibility for asylum” or “extraordinary circumstances” that
11 prevented him from applying. 8 U.S.C. § 1158(a)(2)(B), (D).
12 Dai contends that his baptism and continued practice of
13 Christianity in the United States is a changed circumstance
14 excusing the one-year deadline. We dismiss the petition as
15 to asylum because our review is limited to constitutional
16 claims and questions of law and Dai does not raise such a
17 claim. Id. §§ 1158(a)(3), 1252(a)(2)(D); Xiao Ji Chen v.
18 U.S. Dep’t of Justice, 434 F.3d 144, 151–54 (2d Cir. 2006).
19 Where a petitioner’s argument concerns the meaning of
20 “changed circumstances,” i.e., if an action categorically
21 cannot be a changed circumstance, then we may review the
22 agency’s conclusions. See Weinong Lin v. Holder, 763 F.3d
31 244, 247–49 (2d Cir. 2014). Where, as here, the agency
2 considered the circumstance, but concluded that the alleged
3 change did not materially change the applicant’s risk of
4 persecution, we do not have jurisdiction to review the
5 agency’s factual determination. See Hui Lin Huang v. Holder,
6 677 F.3d 130, 134 (2d Cir. 2012) (“A determination of what
7 will occur in the future and the degree of likelihood of the
8 occurrence has been regularly regarded as fact-finding
9 subject to only clear error review.”); Xiao Ji Chen, 434 F.3d
10 at 154 (“We are . . . without jurisdiction to review
11 petitioner’s claims to the extent that she asserts that the
12 IJ abused his discretion when making factual determinations
13 that she had failed to demonstrate either ‘changed’ or
14 ‘extraordinary’ circumstances.”).
15 II. Withholding of Removal and CAT
16 Dai did not allege past persecution, so he had the burden
17 to show that he would “more likely than not” be persecuted on
18 account of his religion upon his return to China. 8 C.F.R.
19 § 1208.16(b)(1)(iii); see also 8 U.S.C. § 1231(b)(3)(A), (C).
20 The agency reasonably concluded that the record did not show
21 such a likelihood because Dai testified that he and his family
22 had practiced Christianity in China for years without
4
1 suffering persecution. See Melgar de Torres v. Reno, 191
2 F.3d 307, 313 (2d Cir. 1999) (holding that fear of persecution
3 was weakened where applicant’s mother and daughters continued
4 to live in petitioner’s native country unharmed); Lie v.
5 Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (stating that “fear
6 of future persecution is diminished” when “family members
7 remain in petitioner’s native country without meeting harm”).
8 Because the agency reasonably found that Dai failed to
9 demonstrate that he would more likely than not suffer harm
10 rising to the level of persecution on account of his religion,
11 he necessarily failed to establish the likelihood of torture
12 needed to meet his burden for CAT relief. See Lecaj v.
13 Holder, 616 F.3d 111, 119 (2d Cir. 2010).
14 For the foregoing reasons, the petition for review is
15 DISMISSED in part and DENIED in part. All pending motions
16 and applications are DENIED and stays VACATED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe,
19 Clerk of Court
5