Tian v. Holder

• Decision Date: 13 March 2014
• Docket Number: No. 13–2130.,13–2130.
• Parties: MINGHAI TIAN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

745 F.3d 822

MINGHAI TIAN, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 13–2130.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 6, 2014.

Decided March 13, 2014.

Pengtian Ma, Chicago, IL, for Petitioner.

David V. Bernal, Yedidya Cohen, Oil, Department of Justice, Washington, DC, for Respondent.

Before EASTERBROOK, WILLIAMS, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Minghai Tian, a 48–year old Chinese 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 (“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 administrative 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 review 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 culinary 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 investigation of human trafficking. The arrest resulted in no charges, but Tian was turned over to DHS and placed in removal hearings. On March 25, 2009, while the removal hearings 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 statement attached to his applications, he asserted the following narrative: In 1989, Tian took part in demonstrations in Tianjin, China. Because the Tianjin city officials did not want students demonstrating in Tianjin, Tian and his fellow demonstrators were offered free transportation to demonstrations 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 detention, 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 Security Bureau to “report” himself regularly. Tian further asserted that he later went to Beijing University to see Zhao Xuejin, but was told that Zhao had gone to England to seek asylum. When Tian later “got in touch with [Zhao Xuejin] through some channels,” Zhao told Tian that Western nations 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 persecution 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 medical treatment for the injuries he sustained during the detention, 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 Beijing demonstration, but that he is not currently in touch with those people. He also testified that he had no further problems 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 undergone 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 resulted in his demotion to kitchen helper. But he admitted that he advanced to the position of cook, then head chef, prior to coming to the United States. He further testified that he does not have any documentation of his demotion, or attesting to his employment at the restaurant. Tian testified he entered 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 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 immigration judge denied the application for asylum on statutory grounds. He found that Tian had failed to show any applicable exceptions to the one-year asylum application deadline, 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 trajectory suggested that he was a willing and successful participant 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 request 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. Accordingly, the immigration judge ordered Tian removed.

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 credibility determination. Tian filed a timely petition for review.

II. Discussion

Of the three issues Tian raises in his petition, we lack jurisdiction 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 preserved 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 eligibility 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)) (internal quotation marks omitted). However, courts may not “review a determination regarding the timeliness of an alien's application for asylum or the existence of changed or 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 relating 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...