Tian v. Holder, No. 13-2130 (7th Cir. 2014)

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Tian, a 48‐year old Chinese citizen, was admitted to the U.S.in 2001, on a non‐immigrant visa, to participate in an international exchange program. He overstayed and, in 2007, was questioned during an investigation of human trafficking. There were in no charges, but Tian was placed in removal hearings. While the matter was pending, Tian pled guilty to drawing and passing a check with intent to defraud and was ordered to pay $100,000 in restitution; his sentence was suspended. Tian sought asylum, withholding of removal, and Convention Against Torture protection, asserting that, in 1989, he participated in demonstrations and was detained by the police for 10 days, repeatedly assaulted, and undressed and tied to a tree for an entire day. After his release Tian had report to the Public Security Bureau regularly. Tian asserted that he was demoted from being a hotel manager to being a kitchen helper, and that his wife divorced him, because of persecution for his participation in the prodemocracy movement. He claimed that he failed to timely apply for asylum because of “language barriers” and “ignorance of U.S. laws.” Tian did not have documentation of participation in the demonstration, or his detention, or of subsequent medical treatment. The IJ and BIA rejected his claims. The Seventh Circuit dismissed, for lack of jurisdiction, the conclusion that Tian’s asylum application was time‐barred. Because Tian did not exhaust administrative remedies with regard to his CAT claim, the court denied that claim. Tian failed to establish eligibility for withholding of removal.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 13 2130 MINGHAI TIAN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A088 608 599 ____________________ ARGUED JANUARY 6, 2014 DECIDED MARCH 13, 2014 ____________________ Before EASTERBROOK, WILLIAMS, and TINDER, Circuit Judges. TINDER, Circuit Judge. Minghai Tian, a 48 year old Chi nese citizen who has been in the United States since 2001, petitions for the review of the decisions of an immigration judge and the Board of Immigration Appeals ( BIA or Board ) denying him asylum, withholding of removal, and relief under the United Nations Convention Against Torture 2 No. 13 2130 ( CAT ). Because we lack jurisdiction to review the BIA s conclusion that Tian s asylum application was time barred, we dismiss that claim. Because Tian did not exhaust his ad ministrative remedies with regard to his CAT claim, we deny that claim. And because Tian fails to demonstrate that he met his burden of proof for establishing his eligibility for withholding of removal, we also deny Tian s petition for re view with regard to his withholding of removal claim. I. Background Tian is a native and citizen of the People s Republic of China. He was admitted to the United States in 2001 on a non immigrant visa, as a participant in an international culi nary exchange program. The visa authorized him to stay in the United States until June 1, 2001, but Tian remained in the United States beyond that date. He came to the attention of the Department of Homeland Security ( DHS ) on October 4, 2007, after he was arrested for questioning during an in vestigation of human trafficking. The arrest resulted in no charges, but Tian was turned over to DHS and placed in re moval hearings. On March 25, 2009, while the removal hear ings were pending, Tian pled guilty in Nevada to drawing and passing a check without sufficient funds with intent to defraud. He was ordered to pay over $100,000 in restitution, though his sentence was suspended, and he was placed on probation for an indeterminate period not to exceed five years. On October 16, 2008, Tian filed applications for asylum, withholding of removal, and CAT protection. In the state ment attached to his applications, he asserted the following narrative: In 1989, Tian took part in demonstrations in Tian jin, China. Because the Tianjin city officials did not want No. 13 2130 3 students demonstrating in Tianjin, Tian and his fellow de monstrators were offered free transportation to demonstra tions in Beijing, which they accepted. Once in Beijing, Tian and Zhao Xuejin, a member of Beijing University s student governing body, delivered food and water to the protesting students. This caused Tian to be detained by the police on June 1, 1989, and held for ten days. During his ten day de tention, Tian was repeatedly assaulted by police officers, and even undressed and tied to a tree for an entire day. After he was released, the Beijing officials reported his information to Tianjin officials, and Tian had to go to the local Public Secu rity Bureau to report himself regularly. Tian further assert ed that he later went to Beijing University to see Zhao Xue jin, but was told that Zhao had gone to England to seek asy lum. When Tian later got in touch with [Zhao Xuejin] through some channels, Zhao told Tian that Western na tions respected human rights and freedom of speech. Tian asserted that he was demoted from the position of the manager of a hotel to that of a kitchen helper, and that his wife divorced him, both directly as the result of the per secution he suffered for his participation in the pro democracy movement. Tian said, of his trip to the United States in 2001, that the United States was a country [he] had looked forward to seeing for over ten years. He claimed that he had failed to timely apply for asylum in the United States because of language barriers and his ignorance of U.S. laws. At the hearing before the immigration judge, Tian stated that he did not have any documentation of his participation in the demonstration or his detention, or of subsequent med ical treatment for the injuries he sustained during the deten 4 No. 13 2130 tion, because he was not allowed to seek medical care for those injuries. He indicated that his siblings and parents knew he had been detained in Beijing. He testified that he remained in contact with other people who went to the Bei jing demonstration, but that he is not currently in touch with those people. He also testified that he had no further prob lems with Chinese authorities before he left China in 2001. When asked why he submitted no documents to support his application, Tian stated that the city of Tianjin had under gone a great deal of change since he came to the United States, and that many people had changed their cell phone numbers. Because Tian, not his family, was the one who had contact with his fellow demonstrators, he claimed he was unable to locate those people now. In the hearing, Tian also claimed that he was given a document to take to his employer, which seems to have re sulted in his demotion to kitchen helper. But he admitted that he advanced to the position of cook, then head chef, pri or to coming to the United States. He further testified that he does not have any documentation of his demotion, or attest ing to his employment at the restaurant. Tian testified he en tered the United States with a valid Chinese passport, and that he traveled here with a visa for a culinary exchange program. His stated reasons for not applying for asylum within one year of his arrival were because he did not know much about American laws and was ignorant. With regard to his arrest in 2007, Tian stated that he was pulled over for speeding, and that he was turned over to DHS, not prosecuted for any trafficking crime. With regard to the Nevada conviction for drawing and passing a check without sufficient funds, Tian testified that he gave a friend No. 13 2130 5 a blank check because the friend needed to pay for utilities. He testified that he pled guilty on the advice of his attorney and that he pays $300 restitution per month. The immigration judge issued an oral decision finding Tian removable, and denying his applications for asylum, withholding of removal, and CAT protection. The immigra tion judge denied the application for asylum on statutory grounds. He found that Tian had failed to show any appli cable exceptions to the one year asylum application dead line, as Tian did not allege materially changed circumstances in China, and as being too busy and not speaking sufficient English did not constitute extraordinary circumstances that would allow for an untimely application. Furthermore, the immigration judge found that the Nevada conviction was an aggravated felony that rendered Tian statutorily ineligible for asylum. The application for withholding of removal was denied because the immigration judge found Tian not credible. The immigration judge found that Tian s story was implausible, primarily because of the lack of corroborating evidence and because Tian s life after the demonstrations and career trajec tory suggested that he was a willing and successful partici pant in life in China, not an individual fleeing persecution. In support of this proposition, the immigration judge noted that Chinese authorities granted Tian the credentials to leave his country to visit the United States. With respect to the re quest for CAT protection, the immigration judge noted that the fact that Tian left China with a valid passport and thus the implicit permission of the Chinese government suggested he was not subject to torture in China. According ly, the immigration judge ordered Tian removed. 6 No. 13 2130 Tian s appeal brief to the BIA summarily referenced UNCAT relief in the Notice of Appeal section, but did not substantively argue Tian s eligibility for CAT protection. The Board thus found that the CAT issue was waived. The Board affirmed the immigration judge s denial of Tian s untimely asylum application and affirmed the immigration judge s denial of withholding of removal relief and adverse credibil ity determination. Tian filed a timely petition for review. II. Discussion Of the three issues Tian raises in his petition, we lack ju risdiction to review the asylum claim, and we dismiss the petition as it pertains to that claim. We deny the petition for review of the CAT claim, as the issue was not properly pre served for our review. We also deny the petition for review of the withholding of removal claim. A. Application for Asylum An alien must file an application for asylum within one year of arriving in the United States. 8 U.S.C. § 1158(a)(2)(B). The burden is on the alien to establish eligibility for asylum, including the element that he timely filed the application. Id. Despite this requirement, an alien s asylum application may be considered if he demonstrates ¦ either the existence of changed circumstances which may materially affect his eli gibility for asylum or extraordinary circumstances relating to the delay in filing the application within the prescribed one year period. Bitsin v. Holder, 719 F.3d 619, 625 (7th Cir. 2013) (quoting language from 8 U.S.C. § 1158(a)(2)(D)) (in ternal quotation marks omitted). However, courts may not review a determination regarding the timeliness of an al ien s application for asylum or the existence of changed or No. 13 2130 7 extraordinary circumstances to excuse his late filing, unless for constitutional claims or questions of law related to the timely filing of an asylum application. Id. Tian does not ask us to adjudicate constitutional claims or questions of law re lating to the timeliness of his asylum application. Instead, he asks us to review the Board s factual determination that there existed no changed or extraordinary circumstances to excuse his late filing. We lack jurisdiction to review the Board s determination that [Tian] failed to meet any of the exceptions to the rules governing the time within which an asylum application must be filed, because that conclusion did not turn on any question of law or constitutional claim. Almutairi v. Holder, 722 F.3d 966, 1002 (7th Cir. 2013). Accordingly, we dismiss Tian s petition to review the Board s decision that his asylum application is untimely, for want of jurisdiction. B. CAT Protection Claim A failure to exhaust usually forecloses a petitioner from raising an issue in federal court that was not raised before the immigration tribunal. Young Dong Kim v. Holder, 737 F.3d 1181, 1187 (7th Cir. 2013) (quoting Arobelidze v. Holder, 653 F.3d 513, 517 (7th Cir. 2011)) (internal quotation marks omitted). Exhausting all administrative remedies available to the alien includes the obligation first to present to the Board any arguments that lie within its power to address. FH T v. Holder, 723 F.3d 833, 841 (7th Cir. 2013). We deem exhaustion necessary for appellate review because of the importance of provid[ing] the Board an opportunity to apply its special ized knowledge and experience to the matter, which pro vides us with reasoning to review. FH T, 723 F.3d at 841 (quoting Arobelidze, 653 F.3d at 517). 8 No. 13 2130 We agree with the Respondent that Tian did not raise to the Board any substantive arguments for why he should re ceive CAT relief, and that he thus failed to exhaust the ad ministrative remedies available to him with regard to this claim. Tian merely gestured to the existence of a potential CAT claim in an introductory section of his BIA brief, and made no arguments about the immigration judge s denial of his CAT claim. The sentence stating he had applied for re lief under the UNCAT did not provide the Board with an opportunity to apply its specialized knowledge and experi ence to the matter. FH T, 723 F.3d at 841. As such, we hold that Tian failed to meet his burden of properly presenting his claim to the Board. See, e.g., El Gazawy v. Holder, 690 F.3d 852, 858 59 (7th Cir. 2012) (holding that an alien waived an issue presented to the Board in a form simply too thin for the BIA to recognize it in the form the petitioner now urges us to consider ). We thus deny the CAT claim. C. Withholding of Removal Claim 1. Standard of Review Where, as here, the BIAÊ¹s decision adopts and affirms the IJÊ¹s conclusion as well as provides its own analysis, we review both decisions. Bathula v. Holder, 723 F.3d 889, 897 (7th Cir. 2013) (internal quotation marks and citations omit ted). Our review of factual findings is for substantial evi dence: the agency s determination [to deny Tian withhold ing of removal] will stand if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole. Id. at 898 (quoting Vahora v. Holder, 626 F.3d 907, 912 (7th Cir. 2010)). Reversal is appropriate only if the evi dence presented by [Tian] was such that a reasonable fact finder would have to conclude that the requisite fear of per No. 13 2130 9 secution existed. Jabr v. Holder, 711 F.3d 835, 838 (7th Cir. 2013) (quoting INS v. Elias Zacarias, 502 U.S. 478, 481 (1992)). Credibility determinations in asylum cases are also subject to the substantial evidence standard of review. Munoz Avila v. Holder, 716 F.3d 976, 979 (7th Cir. 2013). 2. Credibility of Tian s Claim of Persecution In order to establish eligibility for withholding of remov al, the alien bears the burden of demonstrating that his life or freedom would be threatened ¦ because of [his] race, re ligion, nationality, membership in a particular social group, or political opinion in the country to which he will be re moved. 8 U.S.C. § 1231(b)(3)(A); Firmansjah v. Gonzales, 424 F.3d 598, 605 (7th Cir. 2005) (describing the alien s burden to establish a clear probability of persecution, or that it is more likely than not that he will be subject to persecution if returned to his native country). Persecution is defined to include detention, arrest, interrogation, prosecution, im prisonment, illegal searches, confiscation of property, sur veillance, beatings, torture, behavior that threatens the same, and non life threatening behavior such as torture and eco nomic deprivation if the resulting conditions are sufficiently severe. Yi Xian Chen v. Holder, 705 F.3d 624, 629 (7th Cir. 2013) (citations and internal quotation marks omitted). Tian alleges political persecution based on his involvement in supplying food and water to student demonstrators in 1989 in Beijing. His testimony alone may suffice to prove that he is a refugee if the immigration judge finds it credible, but if the [immigration judge] finds the testimony incredible, cor roborating evidence is required. Rama v. Holder, 607 F.3d 461, 465 (7th Cir. 2010). 10 No. 13 2130 We hold that Tian fails to meet the burden of establishing his eligibility for withholding of removal: he does not pre sent us with a plausible account of his past persecution or feared future persecution in China, and he has failed to pre sent corroborating evidence to overcome the implausibility of his testimony. a. Plausibility of Tian s testimony First, we address the government s argument that Tian waived review of the Board s determination finding implau sible his claim that he was detained and beaten in China for participating in the 1989 demonstration. The government argues that Tian summarily claims that he truthfully testified about his past persecution, but does not otherwise contest the Board s finding of implausibility. We require an argu ment consisting of more than a generalized assertion of er ror to hold that an issue has not been waived in the brief ing. Haxhiu v. Mukasey, 519 F.3d 685, 691 (7th Cir. 2008) (quoting Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001)). Tian does not meet this burden in asserting the plausibil ity of his past persecution in China, as he articulates no co gent argument to challenge the Board s finding of implausi bility. The failure to adequately develop and support [this argument] results in waiver. Long Gang Lin v. Holder, 630 F.3d 536, 543 (7th Cir. 2010). But even if he had not waived this challenge, we would agree with the agency s determina tion on the merits. The immigration judge and the Board reasonably deter mined that Tian s claim of persecution was implausible in view of the totality of his claim. We review the immigration No. 13 2130 11 judge and the Board under the deferential substantial evi dence standard, meaning that we may only reverse their fac tual findings if the facts compel an opposite conclusion. Ba logun v. Ashcroft, 374 F.3d 492, 507 (7th Cir. 2004). The record shows that Tian remained in China for more than ten years after his alleged persecution, and continued working at the same government owned restaurant where he had worked before the demonstration without further persecution from Chinese authorities. During his time there, he was eventually promoted to head chef. Furthermore, the government even permitted him to leave China to participate in a culinary ex change program. Upon arriving in the United States, Tian did not apply for asylum for seven years, and it appears the application was inspired by his being placed in removal pro ceedings in the United States. These facts, combined with the absence of specific details about his mistreatment in the past, reasonably lead to the conclusion that Tian was not fleeing persecution in China when he arrived in the United States in 2001. Nor does Tian present us with any information to sus pect there will be persecution in Tian s future, should he re turn to China. The evidence certainly does not compel the conclusion that Tian will be persecuted should he return there. b. Lack of corroborating evidence Tian is ineligible for withholding of removal because substantial evidence supports the agency s determination that he did not provide sufficient corroborating evidence to overcome his incredible testimony, despite the availability of such evidence. As Tian is subject to the REAL ID Act, an immigration judge may require corroborating evidence, which must be presented unless it cannot [be] reasonably 12 No. 13 2130 obtain[ed]. 8 U.S.C. §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C). Un less [Tian] can show that corroborating evidence was rea sonably unavailable, [his] failure to produce it was fatal to [his] claims. Raghunathan v. Holder, 604 F.3d 371, 379 (7th Cir. 2010). We review the Board s determination that corrob orating evidence was available under the substantial evi dence standard, meaning that we cannot reverse a determi nation made by the Board unless a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable. Id. (quoting Pub. L. No. 109 13, § 101, 119 Stat. 231, 304 (2005)). Tian submitted no corroborating evidence whatsoever, despite having several sources from which he could have obtained such information. He failed to submit evidence from his family, who knew about his detention and with whom he was in touch; fellow demonstrators from the 1989 demonstration, including Zhao Xuejin, apparently now liv ing in England; or the hotel where he worked until 2001, when he left China. Tian s failure to obtain corroborating ev idence and failure to offer legitimate reasons why this evi dence was not available are fatal to his claims. Because Tian does not present a credible account of his past or feared future persecution in China, and because he fails to submit corroborating evidence to overcome his in credible testimony, we deny his petition for review with re gard to his withholding of removal claim. III. Conclusion Tian s petition for review is DISMISSED with respect to the claim for asylum and DENIED with respect to the claims for CAT relief and withholding of removal.

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