r*s
发帖数: 2555 | 1 https://caselaw.findlaw.com/us-2nd-circuit/1365574.html
United States Court of Appeals,Second Circuit.
HONGSHENG LENG, Petitioner, v. Michael B. MUKASEY, Attorney General of the
United States 1, Respondent.
Docket No. 06-2477-ag.
Decided: June 06, 2008
Before: CABRANES, KATZMANN and B.D. PARKER, Circuit Judges. Norman
KwaiWing Wong, New York, NY, for Petitioner. Janice K. Redfern (Peter D.
Keisler, Assistant Attorney General, on the brief; Linda S. Wernery,
of counsel), Office of Immigration Litigation, Civil Division, U.S.
Department of Justice, Washington, DC, for Respondent.
Petitioner Hongsheng Leng seeks review of a decision of an
Immigration Judge (“IJ”) denying his applications for asylum, withholding
of removal, and relief under the Convention Against Torture. See In
re Hongsheng Leng, No. A 74-154-465 (Immig. Ct. N.Y. City Jan. 6, 2005). &#
8194; The Board of Immigration Appeals (“BIA”) adopted and affirmed the IJ
's decision. In re Hongsheng Leng, No. A 74-154-465 (BIA May 4, 2006
). On appeal, Leng contends, inter alia, that the record does not
support the agency's conclusions that his application for asylum was
untimely, he was not a credible witness, and he failed to establish a well-
founded fear of persecution.2 We write to clarify that, in order to
establish eligibility for relief based exclusively on activities undertaken
after his arrival in the United States, an alien must make some showing that
authorities in his country of nationality are (1) aware of his activities
or (2) likely to become aware of his activities.
I. Background
Leng, a native and citizen of the People's Republic of China (“PRC”),
entered the United States in April 1995 on a J-1 non-immigrant visa.
On January 29, 2004, Leng applied for asylum and withholding of removal
based on his political opinions. Specifically, he claimed that (1)
he had become involved in the “China Democratic Party” while in the United
States, (2) his wife and child, who had remained in the PRC, had been
harassed by authorities of the PRC based on his actual and perceived
political beliefs, and (3) due to his political activities, he feared harm
or mistreatment if returned to the PRC.
Leng, through counsel, conceded his removability at a hearing held on April
20, 2004. At a hearing held on January 6, 2005, Leng presented the
IJ with evidence in support of his claims. The documentary evidence
Leng submitted included (1) a supplementary affidavit from Leng stating that
he did not apply for asylum until 2004 because (a) his claim was based on
political activities he had undertaken in the United States from late 2002
onwards and (b) he underwent major surgery in August 2002; (2) a
country conditions report issued by the U.S. Department of State; (3)
copies of Leng's various postings to the “China Democracy Party” website;
(4) photographs documenting Leng's participation in political
rallies; (5) a statement, dated January 26, 2004, from the “
Executive Chairman” of the “China Democratic Party Organization
Development Center,” declaring Leng “the executive official” of the China
Democratic Party, “Wuhan Committee, Hubei Province,” see Joint App. 299.
Leng's other evidence consisted of his own testimony and the
testimony of Xie Wan Jing, a purported CDP 3 official.
Leng testified that he joined the CDP in 2000, following an episode in April
of that year where authorities of the PRC-having become aware of his
collaboration with Xie on an art exhibit-had arrested his wife and
interrogated her about his involvement with a “reactionary organization.”
Id. at 141. According to Leng, he was a “secret party
member” until October 1, 2002, when-while still residing in the United
States-he formally joined the CDP by publishing an article on the Party's
website. Id. at 142. Leng stated that he later learned that
his wife had been arrested and detained again in the PRC after this episode.
Finally, Leng described his participation in various protests in
the United States from January 2004 onwards. On the basis of these
events, Leng stated that he was “sure” that authorities of the PRC (1)
knew about his political activities and (2) would arrest and persecute him
if he returned to the PRC. Id. at 140. Leng did acknowledge, however
, that-notwithstanding his claimed fear of persecution-he had gone to the
PRC consulate in New York, in May 2004, to renew his PRC passport.
In response to questions about the discrepancy between the date he claimed
to have joined the CDP and the date given on his CDP membership document,
Leng explained that the document was dated January 2004 because it had to be
reissued following structural changes within the CDP. Leng also
explained that the CDP expected him to recruit members from Hubei Province
“in the United States” until such time as the Chinese government “
recognized and accepted” the CDP. Id. at 151.
Xie, who identified himself as the chairman of the Chinese Democratic Party,
testified that Leng had asked to join the CDP in 2000 but was not invited
to be a member until 2004. He further testified that the CDP was the
“number one, opposing target” of the PRC, and that, given the chance,
authorities of the PRC would jail Leng because Leng was “a very active
member of [the CDP].” Id. at 166, 168. Xie also, however, testified
that the government of the PRC did not know the identity of most CDP
members.
The IJ noted (1) that Leng and Xie disagreed about when Leng became a member
of the CDP, and (2) that Leng's documentation of his participation in the
CDP was contemporaneous with his application for asylum, “clearly
indicating that [Leng] appears to have manufactured his political activity
in order to suit his asylum claim.” Id. 113. The IJ also
noted that Leng's claim that “the Chinese Government is aware of his
membership and his activities” appeared to be in conflict with Leng's
testimony “under oath[,] ․ that on two occasions he applied for the
renewal of his Chinese passport, first in 1999 and again in 2004 with the
Chinese Government here in New York City.” Id. at 111. As the IJ
observed, whether Leng applied for the passports himself-as he first claimed
-or “did not go himself to ․ apply for these documents,” as he later
claimed,
the bottom line is this [petitioner] who claims that he is known as a
subversive and dissident in the People's Republic of China was comfortable
enough to approach this Government on two different occasions to renew his
passport, even though he did not have a pressing need to do so, and was not
planning allegedly to travel to the People's Republic of China.
Id. at 111-12.
On this basis, the IJ found (1) that Leng was “not credible [ ]or
plausible,” id. 113, (2) that his testimony was not “sufficiently detailed
, believable, and consistent to ․ adequate[ly] support ․ his
claim[s],” id. at 110, and (3) that Leng had “clearly failed to make a
showing that he will be subjected to future persecution if forced to return
to the People's Republic of China,” id. at 113-14. The IJ also
determined that Leng's August 2002 surgery did not fully justify his failure
to apply for asylum until 2004. Accordingly, the IJ concluded that
Leng had failed to establish that he qualified for an exception to the one-
year filing deadline for asylum set forth in 8 U.S.C. § 1158 4
or was otherwise eligible for relief.
The BIA adopted and affirmed the decision of the IJ. As an initial matter,
the BIA determined that the IJ's adverse credibility finding was “supported
by the evidence of record.” Id. at 2. The BIA also determined that
, even assuming the veracity of Leng's testimony, Leng had failed to explain
adequately why he did not file his asylum application until January 2004-
four years after the alleged arrest of his wife and his alleged decision to
join the CDP. Finally, the BIA “agree[d] with the Immigration Judge's
alternative finding that, even if the asylum application had been timely
filed, it must be denied for lack of evidence of past persecution or a well-
founded fear of future persecution.” Id.
II. Discussion
“Where the BIA adopts the decision of the IJ and merely supplements
the IJ's decision ․ we review the decision of the IJ as supplemented
by the BIA.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005).
To establish his eligibility for asylum, an alien who does not claim past
persecution must establish that he faces a “reasonable possibility of
future persecution” based on a statutorily recognized characteristic. &#
8194; Kyaw Zwar Tun v. INS, 445 F.3d 554, 565 (2d Cir.2006) (internal
quotation marks omitted); 8 U.S.C. § 1101(a)(42) (including
political opinion among these characteristics). To establish his
eligibility for withholding of removal, such an applicant “must show that
it is more likely than not that [ ]he would suffer future persecution
․ if returned to the country of removal.” Li Hua Lin v. U.S.
Dep't of Justice, 453 F.3d 99, 105 (2d Cir.2006) (internal quotation marks
omitted). Finally, to establish eligibility for relief under the
Convention Against Torture (“CAT”), such an applicant must show that “it
is more likely than not that he or she would be tortured if removed to the
proposed country of removal.” Ramsameachire v. Ashcroft, 357 F.3d
169, 184 (2d Cir.2004) (quoting 8 C.F.R. § 208.16(c)(2)).
We review the agency's factual findings-including any adverse
credibility finding-for substantial evidence, treating these as “conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the
agency's legal conclusions de novo. See, e.g., Jiang v. Bureau of
Citizenship and Immigration Servs., 520 F.3d 132, 135 (2d Cir.2008).
A. Timeliness of Leng's application for asylum
Leng contends that the IJ did not “fair[ly] assess[ ] ․
the evidence in the record” when evaluating his claim that changed and
extraordinary circumstances justified his failure to apply for asylum within
the one-year filing deadline established by 8 U.S.C. § 1158.
Pet. Br. 25. On this basis, he contends that the agency “deprived
[him] of his due process and constitutional rights to have a full and fair
hearing and a meaningful opportunity to be heard.” Id. at 24.
Looking to the “precise arguments of the petition,” we note that
Leng's challenge amounts to nothing more than a “conclusory assertion that
the [agency] failed to apply the law.” Xiao Ji Chen v. U.S. Dep't of
Justice, 471 F.3d 315, 330 (2d Cir.2006) (internal quotation marks and
brackets omitted). Leng points to nothing in the record suggesting
the existence of “fact-finding ․ flawed by an error of law” or
discretionary decisionmaking “made without rational justification.”
;Id. at 329. Nor does he endeavor to explain how he was deprived of
fundamental fairness or otherwise denied a full and fair opportunity to
present his claims. In essence, Leng “us[es] the rhetoric of a
constitutional claim ․ to disguise what is essentially a quarrel about
fact-finding [and] the exercise of discretion.” Id. at 330 (
internal quotation marks omitted). Because we lack jurisdiction “to
review decisions under the INA when the petition for review ․ raises
neither a constitutional claim nor a question of law,” id. at 329, we
dismiss Leng's petition for review of the agency's determination that his
application for asylum should be rejected as untimely.
B. The agency's adverse credibility determination
In evaluating the agency's adverse credibility determination, we
consider “whether this determination was supported by substantial evidence
and based on specific, cogent reasons bearing a legitimate nexus to the
determination.” Belortaja v. Gonzales, 484 F.3d 619, 626 (2d Cir.
2007). The agency may properly base an adverse credibility
determination on a discrepancy in the petitioner's evidence if the
discrepancy in question goes “to the heart” of petitioner's claim for
relief, see, e.g., Dong v. Ashcroft, 406 F.3d 110, 112 (2d Cir.2005) (
quoting Ramsameachire, 357 F.3d at 182)-that is, if a “ ‘legitimate
nexus,’ clearly exists between petitioner's claim of persecution and the [
discrepancy] giving rise to the IJ's adverse credibility finding,” id. (
quoting Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003)).
Here, the IJ appears to have based her adverse credibility
determination on four perceived problems with Leng's evidence. The
first was the substantial discrepancy between (1) Leng's claim to have
joined the CDP in 2002 and (2) the membership date of 2004 suggested by the
other evidence Leng submitted in support of his application-the implication
of which, the IJ found, was that Leng had “manufactured his political
activity in order to suit his asylum claim.” See Joint App. 113. &#
8194; The second was the conflict between (1) Leng's claims that he feared
persecution by the PRC government on the basis of his CDP membership and
political activities and (2) Leng's admission that he visited the PRC
consulate in person even after becoming an “open” member of CDP. The third
was the perceived inconsistency between (1) Leng's application to remain in
the United States and (2) his claim that the CDP had selected him to
recruit new members from Hubei Province. The fourth related to
inconsistencies and omissions in the testimony and documentary submissions
Leng offered regarding his wife's arrest.
Each of the IJ's factual findings was based on record evidence and casts
into doubt a claim that bears a close and legitimate relationship with Leng'
s application for relief. Taken together, these discrepancies
provide more than ample support for the IJ's finding that Leng's testimony
was neither “credible nor plausible.” Id. at 113. Our
conclusion that the record presents no basis to disturb the agency's adverse
credibility determination does not resolve this matter, however, because
Leng's application for withholding of removal did not rest on his testimony
alone.
C. Leng's failure to establish his eligibility for withholding of
removal
Because withholding of removal “is mandatory once [an] entitlement
is established,” Tun, 445 F.3d at 565, we review the agency's denial of
such relief-essentially, the agency's conclusion that an entitlement has not
been established-under the substantial evidence standard, Saleh v. United
States Dep't of Justice, 962 F.2d 234, 238 (2d Cir.1992). On appeal,
Leng claims that the agency's denial of relief was incorrect in light of
record evidence-specifically, “background information on the country
condition[s] of China” and testimony by Xie-indicating that “CDP members
are subject to severe persecution and torture by the Chinese government.” &
#8194; Pet. Br. 21.
When seeking asylum, withholding of removal, or CAT relief, an
applicant who has not alleged eligibility on the basis of past persecution
must establish a “well founded fear of future persecution.” Tun,
445 F.3d at 564 (internal quotation marks omitted). To demonstrate
that “[his] fear of persecution is well-founded,” such an applicant must
establish that his putative “persecutor is, or could become, aware of the
applicant's possession of the disfavored belief or characteristic.”
Id. at 565. As we have explained, an applicant can make this showing
in one of two ways: first, by offering evidence that “he or she
would be singled out individually for persecution”; and second, by
“prov[ing] the existence of ‘a pattern or practice in his or her country
of nationality ․ of persecution of a group of persons similarly
situated to the applicant’ ․ and ․ establish[ing] ‘his or her
own inclusion in, and identification with, such [a] group.’ ”
;Id. at 564 (quoting 8 C.F.R. § 208.13(b)(2)(iii)).
Put simply, to establish a well-founded fear of persecution in the
absence of any evidence of past persecution, an alien must make some showing
that authorities in his country of nationality are either aware of his
activities or likely to become aware of his activities. The
appropriate burden of proof varies according to the type of relief sought: &
#8201;an applicant must show “a ‘clear probability’ in the withholding
context, and only ‘a reasonable possibility’ in the asylum context.” &#
8194;Id. at 565 (quoting Matter of Mogharrabi, 19 I. & N. Dec. 439, 446-47 (
BIA 1987)).
The IJ, while concluding that Leng had not testified credibly as to his
belief that the government of the PRC was aware of his CDP membership and
political activities, did not make any specific finding as to whether other
evidence in the record supports this claim. Accordingly, we remand
this matter for the very limited purpose of allowing the IJ to consider
whether authorities of the PRC were (1) aware or (2) likely to become aware
of Leng's activities.
III. Conclusion
For the reasons given above, the petition for review is (1) Dismissed as to
the agency's denial, as untimely, of petitioner's application for asylum and
(2) Granted as to the agency's determination that petitioner was ineligible
for withholding of removal and CAT relief. On remand, the fact-
finder should determine whether Leng's documentary evidence and the
testimony of Xie indicate that authorities of the PRC were either aware or
likely to become aware of Leng's activities.
FOOTNOTES
2. Leng, relying on 8 C.F.R. § 1208.11, also contends that “
[t]he IJ committed reversible legal error” by failing to request comments
from the Department of State. Pet. Br. 26-28. This claim has
no merit in light of the text of section 1208.11, which clearly provides
that requests for comments are discretionary rather than mandatory.
Id. § 1208.11(c) (“[I]mmigration judges may request specific
comments from the Department of State regarding individual cases or types of
claims under consideration, or such other information as they deem
appropriate.”) (emphasis added).We also reject Leng's claim that the IJ
failed to comply with the requirements set forth in 8 C.F.R. § 208.18
(c)(3). Because the agency's denial of relief was not based on any
representations by the Secretary of State, section 208.18(c)(3) is
inapplicable to Leng's case. See id. § 208.18(c)(1) (
providing that “[t]he Secretary of State may forward to the Attorney
General assurances that the Secretary has obtained from the government of a
specific country that an alien would not be tortured there if the alien were
removed to that country”); id. § 208.18(c)(3) (“Once
assurances are provided under paragraph (c)(2) of this section, the alien's
claim for protection under the Convention Against Torture shall not be
considered further by an immigration judge, the Board of Immigration Appeals
, or an asylum officer.”).
3. The country conditions report submitted by Leng distinguishes
between the “China Democratic Party”-an opposition party based in the PRC-
and “the U.S.-based Chinese Democratic Party.” Joint App. 193. &#
8194; Leng's documentary evidence, asylum application, and brief on appeal
refer to his membership in the “China Democratic Party” and the “China
Democracy Party”; his hearing testimony refers to his membership in
the “Chinese Democratic Party.” Id. at 131. At the hearing
, Leng's counsel asked how the “Chinese Democratic Party” Leng had joined
in the United States was related to China-based party. In response,
Leng stated that “the basic princip[les] [were] the same” but he did not
know of any Party members or activities in the PRC. Id. at 135.Because the
record does not conclusively establish with which organization Leng
purported to be affiliated, we use the generic term “CDP” to describe the
organization in question.
4. Section 1158(a)(2)(B) provides that an alien must “demonstrate[&
#8201;] by clear and convincing evidence that the application has been filed
within 1 year after the date of the alien's arrival in the United States.”
Section 1158(a)(2)(D) provides that an application filed outside
this time period “may be considered ․ if the alien demonstrates to
the satisfaction of the Attorney General either the existence of changed
circumstances which materially affect the applicant's eligibility for asylum
or extraordinary circumstances relating to the delay in filing an
application within the period specified.”
PER CURIAM: | t**********z
发帖数: 1 | | I*3
发帖数: 7012 | 3 擦
这次 CDP 出风头了，声势已经超过 DPP 和 KMT，直逼CCP
,
【在 r*s 的大作中提到】
: https://caselaw.findlaw.com/us-2nd-circuit/1365574.html
: United States Court of Appeals,Second Circuit.
: HONGSHENG LENG, Petitioner, v. Michael B. MUKASEY, Attorney General of the
: United States 1, Respondent.
: Docket No. 06-2477-ag.
: Decided: June 06, 2008
: Before: CABRANES, KATZMANN and B.D. PARKER, Circuit Judges. Norman
: KwaiWing Wong, New York, NY, for Petitioner. Janice K. Redfern (Peter D.
: Keisler, Assistant Attorney General, on the brief; Linda S. Wernery,
: of counsel), Office of Immigration Litigation, Civil Division, U.S.
| M*******z
发帖数: 1 | | M*******z
发帖数: 1 | | M***a
发帖数: 97 | 6 中国县市不到3000个，市委县委书记有限，大家抓紧了。 | b***y
发帖数: 14281 | 7 后来放狗又搜了一下hongsheng leng，发现冷书记这个案子还是美国移民法里的著名案
例，后来却被不少律师引用。
★ 发自iPhone App: ChinaWeb 1.1.5
★ 发自iPhone App: ChinaWeb 1.1.5
【在 r*s 的大作中提到】
: https://caselaw.findlaw.com/us-2nd-circuit/1365574.html
: United States Court of Appeals,Second Circuit.
: HONGSHENG LENG, Petitioner, v. Michael B. MUKASEY, Attorney General of the
: United States 1, Respondent.
: Docket No. 06-2477-ag.
: Decided: June 06, 2008
: Before: CABRANES, KATZMANN and B.D. PARKER, Circuit Judges. Norman
: KwaiWing Wong, New York, NY, for Petitioner. Janice K. Redfern (Peter D.
: Keisler, Assistant Attorney General, on the brief; Linda S. Wernery,
: of counsel), Office of Immigration Litigation, Civil Division, U.S.
| m***y
发帖数: 14763 | 8 这不是刚出一个缺吗？
大家不要挤！
实在不行，你再开个CEP，CFP，CGP……嘛
搞饥饿营销，会遭报应得乔布斯那个癌的！
【在 M***a 的大作中提到】
: 中国县市不到3000个，市委县委书记有限，大家抓紧了。
| r***y
发帖数: 4379 | | L*********g
发帖数: 1 | | c****o
发帖数: 32446 | | F**o
发帖数: 871 | 12 CDP武汉市委书记住下室被雨水淹死，真他妈清廉到姥姥家了。 | h*********n
发帖数: 11319 | 13 老逼将没一个进来的，就希望这个帖子沉了
【在 L*********g 的大作中提到】
: 强帖留名。
| b*3
发帖数: 1 | | x****u
发帖数: 32 | | d*******y
发帖数: 2710 | | l**k
发帖数: 45267 | 17 别偷懒，就当复习GRE了吧lol
【在 x****u 的大作中提到】
: 太长了懒得看，谁来个萨玛瑞
| r*******1
发帖数: 1183 | 18 原来整庇这么正规的啊，要我共认可认知并骚扰家人才行。老冷去过中领馆更新过两次
护照，所以被拒了。 |
|
