Htun v. Lynch
| Decision Date | 08 April 2016 |
| Docket Number | No. 15–9533.,15–9533. |
| Citation | 818 F.3d 1111 |
| Parties | Kyaw Myat HTUN, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Submitted on the briefs:*
Patrick Wang, New York, NY, for Petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Terri J. Scadron, Assistant Director; Hillel R. Smith, Attorney, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.
Petitioner Kyaw Myat Htun is a citizen of Burma who has lived in the United States for several years and seeks asylum and other forms of relief that would allow him to remain in the country. The immigration judge (IJ) initially granted Mr. Htun's asylum application but later reopened the removal proceedings and denied the application. Based on newly discovered evidence, the IJ concluded Mr. Htun lacked credibility and the circumstances did not warrant an exercise of discretion in favor of Mr. Htun's application.
The Board of Immigration Appeals (BIA) affirmed the IJ's ruling and dismissed Mr. Htun's appeal. Mr. Htun now petitions this court for review of the BIA's decision. Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny his petition.
Mr. Htun came to the United States in January 2002, as a nonimmigrant F–1 student, with authorization to remain in the country for a temporary period not to exceed the duration of his student status. Mr. Htun was specifically admitted to attend Salem International University, but he did not attend and instead remained in the country without authorization. In January 2003, Mr. Htun applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT).
In his asylum application, Mr. Htun claimed he was seeking relief based on persecution for his political opinions.1 Mr. Htun explained that he had been associated with anti-government student groups since 1994 and feared he would be arrested or otherwise harassed if he returned to Burma. To further support his application, Mr. Htun indicated his father had been arrested three times in Burma.
On November 25, 2003, an asylum officer interviewed Mr. Htun regarding his asylum application. During his interview, Mr. Htun stated that at the time he was a university student in Burma in 1996, he and other students organized a protest. In response, soldiers detained Mr. Htun and the other students.2 Approximately two years later, in 1998, Mr. Htun again participated in a protest at his school. On this occasion, police contacted Mr. Htun's parents, who came to the school and took him home. After the 1998 events, Mr. Htun "fear[ed] further harm" from the government and therefore "fled from Burma and went to Singapore to attend school." After moving to Singapore, Mr. Htun returned to Burma five times between 1998 and 2002 and was able to enter and exit Burma without incident. Based on the interview, the asylum officer concluded Mr. Htun had not provided a credible explanation for his fear of persecution if he returned to Burma. The officer therefore determined Mr. Htun was not eligible for asylum and referred the application to the immigration court for removal proceedings.
On June 11, 2004, the Department of Homeland Security (DHS) served Mr. Htun with a Notice to Appear, which charged him as removable under section 237(a)(1)(B) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(1)(B). Mr. Htun admitted the allegations in the Notice to Appear and conceded removability, but he continued pursuing his asylum application.
On March 2, 2006, while his removal proceedings were pending, Mr. Htun married a U.S. citizen named Melissa Burris, and Ms. Burris filed an I–130 Petition for Alien Relative on Mr. Htun's behalf. Mr. Htun moved to continue the hearing in his removal proceedings, based on the fact that the I–130 Petition had not been decided. The IJ granted the continuance.
After several continuances, the IJ held an evidentiary hearing on Mr. Htun's asylum application on January 5, 2010. At the beginning of the hearing, Mr. Htun informed the IJ that although he had previously filed an application for adjustment of status based on the I–130 Petition, he and Ms. Burris had since divorced. Mr. Htun did not provide any additional information about his marriage or the divorce.
Mr. Htun then testified with the help of an interpreter and repeated much of the information he had previously provided to the asylum officer. In particular, Mr. Htun reiterated that, as a student in Burma, he participated in anti-government demonstrations, resulting in one occasion where he and other students were detained overnight. Before being released, Mr. Htun claimed he was forced to sign a document saying he would no longer participate in political opposition. But Mr. Htun joined another demonstration the next day, was again detained, and was forced to sign a document agreeing not to participate in further demonstrations. Mr. Htun was not physically harmed during either detention.
Mr. Htun further testified that in 1998, he participated in a student protest, during which the government sprayed a large crowd of students, including Mr. Htun, with a fire hose. Mr. Htun described the experience as "very painful" but confirmed he was not otherwise injured. After Mr. Htun and the other students then locked themselves in their dormitory, the government gave the students an ultimatum to return home within seven days or the military would "come in and forcefully break up" the protest. Although the students returned home, Mr. Htun testified that several students "disappeared without any trace and incidentally two of [his] best friends were sentenced to seven years." Fearing similar retaliation from the government, Mr. Htun fled to Singapore in December 1998.
Mr. Htun stayed in Singapore until 2002 but returned to Burma five times during that period. Mr. Htun claimed that, when he visited Burma, he feared being arrested and therefore could not stay with his family; he instead "had to stay with friends here and there" for two or three days at a time. At the time of the hearing in January 2010, Mr. Htun stated he continued to believe he would be arrested if he returned to Burma.
Mr. Htun also called Tun Tun Oo as a witness. Mr. Oo testified that Mr. Htun stayed with him in Burma for three days during one of Mr. Htun's return visits from Singapore. After Mr. Htun left, Burmese officials questioned Mr. Oo about whether Mr. Htun had stayed with him. Mr. Oo denied that Mr. Htun had been there and the officials directed Mr. Oo to report to them if Mr. Htun showed up and "warned [Mr. Oo] that allowing [Mr. Htun] to stay with [him] could put [his] family in trouble." Mr. Oo explained that Mr. Htun was targeted by Burmese officials because he was a student leader.
The IJ found Mr. Oo credible and concluded his testimony corroborated Mr. Htun's statements regarding his need to evade the government when he made return visits to Burma. Relying on Mr. Oo's testimony, the IJ was "persua [ded] ... that [Mr. Htun had] at least ... a 10 percent chance of being in danger if he goes back to Burma." Although the IJ did not find Mr. Htun had been persecuted in the past, he concluded Mr. Htun had a well-founded fear of being persecuted if he were to return to Burma. The IJ therefore granted Mr. Htun's asylum application.
On January 26, 2010, DHS filed a motion to reopen Mr. Htun's removal proceedings based on material information not previously provided by Mr. Htun. Specifically, DHS argued Mr. Htun had failed to provide the full facts about his marriage to Melissa Burris and had failed to disclose his business relationship with Mr. Oo. Over Mr. Htun's objection, the IJ granted DHS's motion.
On May 14 and 15, 2013, the IJ held a second hearing on Mr. Htun's asylum application. Mr. Htun again testified about his political protests and detentions in Burma. He also reiterated that he fled to Singapore in December 1998 but returned to Burma five times between 1998 and 2002. His visits ranged from a few days to several weeks, and on one occasion, Mr. Htun stayed in Burma for over fifty days because his mother was ill.
Although Mr. Htun claimed Burmese officials had an active warrant for his arrest, he testified he avoided being arrested by traveling during busy tourist times because the Burmese government was "afraid [of] detaining [Mr. Htun] in front of the foreigners." But Mr. Htun also confirmed that each time he returned to Burma, he was interviewed by customs officials yet never arrested. In addition, Mr. Htun admitted he renewed his passport at the Burmese embassy in Singapore without incident. When asked about the "two different Burmas" depicted in his testimony—one in which an oppressive government issued an arrest warrant based on his participation in student protests, and one in which he could freely enter and exit Burma without being arrested—Mr. Htun stated his belief that if the Burmese government had found him any time from 1998 to 2002, he would have been arrested. He conceded, however, that he does not know what the Burmese government would do now.
Mr. Htun also testified about his marriage to Ms. Burris. Mr. Htun confirmed that he filed a petition for a green card based on his marriage to Ms. Burris and upon further questioning, acknowledged he "entered into a marriage that [he] knew was not a true marriage for love and in an effort to obtain a green card." Mr. Htun similarly admitted he entered into the marriage "with the intent to obtain an [i]mmigration benefit" and did so "knowing the marriage was not a valid marriage for [i]mmigration purposes." Mr. Htun testified that when he married Ms. Burris, he was actually in a relationship with Ms. Burris's friend, who is the mother of Mr. Htun's child.
DHS also called Mr. Oo, who confirmed...
To continue reading
Request your trial
-
Alvarez v. Garland
...a decision, "we review the [BIA] order as the final agency determination and limit our review to the grounds relied upon by the BIA." Htun, 818 F.3d at 1118. In this case, we would look to an IJ's decision "when seeking to understand the grounds provided by the BIA." Uanreroro, 443 F.3d at ......
-
Abarca-Quintanilla v. Garland
... ... its findings of fact under a substantial-evidence ... standard." Xue v. Lynch, 846 F.3d 1099, 1104 ... (10th Cir. 2017). "Agency findings of fact are ... conclusive unless the record demonstrates that any reasonable ... supported by substantial evidence and are substantially ... reasonable." Htun v. Lynch, 818 F.3d 1111, 1119 ... (10th Cir. 2016) (brackets and internal quotation marks ... omitted) ... B ... ...
-
Gomez v. Garland
... ... "one central reason" nexus standard applicable for ... asylum. See Barajas-Romero v. Lynch" , 846 F.3d 351, ... 360 (9th Cir. 2017) (internal quotation marks omitted). We ... have not decided the issue ... \xC2" ... Ashcroft , 355 ... F.3d 1222, 1233 (10th Cir. 2004) (internal quotation marks ... omitted); see also Htun v. Lynch , 818 F.3d 1111, ... 1119 (10th Cir. 2016) ("[E]ven if we disagree with the ... BIA's [findings], we will not reverse if they ... ...
-
Simpara v. Garland
...§ 1252(b)(4)(B).[11] Even were we to disagree with the BIA's conclusion, that alone would be an insufficient basis to reverse. See Htun, 818 F.3d at 1119. Simpara contends, and the government does not dispute, that parental abuse can be on account of religion. See In re S-A-, 22 I. & N. Dec......