Miaoyun Xia v. Eric Holder, Jr.

Ninth Circuit

Miaoyun Xia v. Eric Holder, Jr.

555 F. App'x 722

CourtCourt of Appeals for the Ninth Circuit

DecidedFebruary 21, 2014

Docket10-70908

StatusUnpublished

This text of 555 F. App'x 722 (Miaoyun Xia v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Miaoyun Xia v. Eric Holder, Jr., 555 F. App'x 722 (9th Cir. 2014).

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Opinion

MEMORANDUM **

1.The Board of Immigration Appeals (BIA) correctly concluded that Xia filed her asylum application outside the one-year filing deadline and cannot show extraordinary circumstances to excuse her delay. See 8 C.F.R. § 1208.4(a). Xia arrived in the United States in May of 2002, but she did not file her asylum application until March 1, 2005. She argues that her delay in filing was caused by the disappearance of the lawyer she hired to prepare her asylum application. But she discovered that the lawyer had disappeared in November 2003, and she still did not file her asylum application until fifteen months later. The reasons for that fifteen-month delay — lack of familiarity with immigration laws and her attorney’s disappearance — do not constitute extraordinary circumstances excusing the delay. See Al Ramahi v. Holder, 725 F.3d 1133, 1138-39 (9th Cir.2013).

2. The BIA found that Xia failed to establish a nexus between her mistreatment and a protected ground. But after the BIA issued its decision, we decided Hu v. Holder, 652 F.3d 1011 (9th Cir.2011). That case involved a withholding claim similar to Xia’s, and analyzed the nexus requirement in the context of a labor demonstrator arrested for disturbing the peace. Id. at 1014, 1019. In light of this intervening precedent, we remand Xia’s withholding of removal claim to the BIA so that the BIA can reconsider whether Xia has met the nexus requirement. See Pannu v. Holder, 639 F.3d 1225, 1227-29 (9th Cir.2011).

3. The BIA’s denial of Xia’s claim for relief under the Convention Against Torture (CAT) is supported by substantial evidence. The record does not compel the conclusion that the abuse Xia suffered in custody amounted to torture under CAT, and she points to no evidence that she will suffer more severe abuse upon her return to China. See Kumar v. Gonzales, 444 F.3d 1043, 1055-56 (9th Cir.2006).

PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART, and REMANDED.

The parties shall bear their own costs.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

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MEMORANDUM **

1.The Board of Immigration Appeals (BIA) correctly concluded that Xia filed her asylum application outside the one-year filing deadline and cannot show extraordinary circumstances to excuse her delay. See 8 C.F.R. § 1208.4(a). Xia arrived in the United States in May of 2002, but she did not file her asylum application until March 1, 2005. She argues that her delay in filing was caused by the disappearance of the lawyer she hired to prepare her asylum application. But she discovered that the lawyer had disappeared in November 2003, and she still did not file her asylum application until fifteen months later. The reasons for that fifteen-month delay — lack of familiarity with immigration laws and her attorney’s disappearance — do not constitute extraordinary circumstances excusing the delay. See Al Ramahi v. Holder, 725 F.3d 1133, 1138-39 (9th Cir.2013).

2. The BIA found that Xia failed to establish a nexus between her mistreatment and a protected ground. But after the BIA issued its decision, we decided Hu v. Holder, 652 F.3d 1011 (9th Cir.2011). That case involved a withholding claim similar to Xia’s, and analyzed the nexus requirement in the context of a labor demonstrator arrested for disturbing the peace. Id. at 1014, 1019. In light of this intervening precedent, we remand Xia’s withholding of removal claim to the BIA so that the BIA can reconsider whether Xia has met the nexus requirement. See Pannu v. Holder, 639 F.3d 1225, 1227-29 (9th Cir.2011).

3. The BIA’s denial of Xia’s claim for relief under the Convention Against Torture (CAT) is supported by substantial evidence. The record does not compel the conclusion that the abuse Xia suffered in custody amounted to torture under CAT, and she points to no evidence that she will suffer more severe abuse upon her return to China. See Kumar v. Gonzales, 444 F.3d 1043, 1055-56 (9th Cir.2006).

PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART, and REMANDED.

The parties shall bear their own costs.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

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