20-2058 Wang v. Garland BIA Thompson, IJ A206 790 928
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of June, two thousand twenty- four.
PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, DENNIS JACOBS, EUNICE C. LEE, Circuit Judges. _____________________________________
ZHEN RONG WANG, Petitioner,
v. 20-2058 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Zhou Wang, Esq., New York, NY. FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Keith I. McManus, Assistant Director; Rosanne M. Perry, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DISMISSED in part and DENIED in part.
Petitioner Zhen Rong Wang, a native and citizen of the People’s Republic of
China, seeks review of a June 2, 2020, decision by the BIA affirming a June 8, 2018,
decision of an Immigration Judge (“IJ”) denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”). In re Zhen Rong Wang, No. A206 790 928 (B.I.A. June 2, 2020), aff’g No.
A206 790 928 (Immig. Ct. N.Y. City June 8, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
Under the circumstances, we have reviewed both the IJ’s and the BIA’s
opinions. See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).
A. One Year Bar
An alien is ineligible for asylum “unless the alien demonstrates by clear and
convincing evidence that the application has been filed within 1 year after the date 2 of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). An
application may be considered outside the deadline “if the alien demonstrates . . .
extraordinary circumstances relating to the delay,” id. § 1158(a)(2)(D), and the
application is filed within a reasonable time, 8 C.F.R. § 1208.4(a)(5).
Extraordinary circumstances include, but are not limited to, serious illness, legal
disability, ineffective assistance of counsel, maintenance of lawful status or a grant
of parole, timely filing of an application rejected by U.S. Citizenship and
Immigration Services, and death or serious illness of a legal representative or
immediate family. Id.
8 U.S.C. § 1252(a)(2)(D) limits our jurisdiction to review claims relating to
the timeliness of an asylum application or the circumstances excusing
untimeliness to only “colorable” “constitutional claims or questions of law.”
Barco-Sandoval v. Gonzales, 516 F.3d 35, 40–41 (2d Cir. 2008); see 8 U.S.C.
§ 1158(a)(3).
Wang argues that extraordinary circumstances excused his untimely filing
because agency procedures prevented him from timely filing his application.
Specifically, he contends that the agency required him to file his application at his
master calendar hearing which was scheduled to occur after the one-year deadline
3 and that he was not permitted to lodge his application by other means. Wang’s
argument, even if treated as a question of law, is not colorable.
Beginning in 2013, noncitizens could lodge applications at the immigration
court window and IJs were permitted to take that date into account when deciding
the applicability of the one-year bar. See Guidelines for Implementation of the
ABT Settlement Agreement, Executive Office for Immigration Review, Operating
Policies and Procedures Memorandum 13-03 (Dec. 2, 2013). 1 Wang’s ability to
lodge his application before the date of his master calendar hearing is evidenced
by the fact that his application was lodged in November 2015, prior to his July 2016
master calendar hearing. Thus, as the IJ found, there were no extraordinary
circumstances preventing Wang from timely lodging his asylum claim.
Accordingly, because Wang does not raise a colorable constitutional claim
or question of law regarding the agency’s denial of asylum as time-barred, we lack
jurisdiction to review that decision and dismiss the petition to that extent. See
8 U.S.C. § 1158(a)(3); see also Barco-Sandoval, 516 F.3d at 40–41. We note that, even
if we were to find that Wang’s argument had merit, remand would be futile
1 OPPM 13-03 is available at: https://www.justice.gov/sites/default/files/eoir/legacy/2013/12/03/13-03.pdf 4 because, as discussed below, the agency reasonably denied asylum, withholding
of removal, and CAT relief based on a finding that Wang could avoid future harm
by relocating within China. See De La Rosa v. Holder, 598 F.3d 103, 108 (2d Cir.
2010) (“Remand is unnecessary if it would be pointless or futile, such as where
there is an alternative and sufficient basis for the result, the error is tangential to
non-erroneous reasoning, or the overwhelming evidence makes the same decision
inevitable.”).
B. Relocation
We review factual findings for substantial evidence, deferring “to the
factfinder’s findings based on such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion,” and review legal conclusions de novo.
Singh v. Garland, 11 F.4th 106, 113 (2d Cir. 2021) (internal quotation marks and
citation omitted); see 8 U.S.C. § 1252(b)(4)(B). The agency reasonably concluded
that Wang could safely relocate within China to avoid future harm.
An applicant who previously has suffered persecution is presumed to have
a well-founded fear of future persecution, as required for asylum. 8 C.F.R.
§ 1208.13(b)(1). Similarly, it is presumed that such an applicant’s life or freedom
would be threatened upon return, as required for withholding of removal.
5 8 C.F.R. § 1208.16(b)(1)(i). The Government may rebut these presumptions if it
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20-2058 Wang v. Garland BIA Thompson, IJ A206 790 928
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of June, two thousand twenty- four.
PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, DENNIS JACOBS, EUNICE C. LEE, Circuit Judges. _____________________________________
ZHEN RONG WANG, Petitioner,
v. 20-2058 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Zhou Wang, Esq., New York, NY. FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Keith I. McManus, Assistant Director; Rosanne M. Perry, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DISMISSED in part and DENIED in part.
Petitioner Zhen Rong Wang, a native and citizen of the People’s Republic of
China, seeks review of a June 2, 2020, decision by the BIA affirming a June 8, 2018,
decision of an Immigration Judge (“IJ”) denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture
(“CAT”). In re Zhen Rong Wang, No. A206 790 928 (B.I.A. June 2, 2020), aff’g No.
A206 790 928 (Immig. Ct. N.Y. City June 8, 2018). We assume the parties’
familiarity with the underlying facts and procedural history.
Under the circumstances, we have reviewed both the IJ’s and the BIA’s
opinions. See Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).
A. One Year Bar
An alien is ineligible for asylum “unless the alien demonstrates by clear and
convincing evidence that the application has been filed within 1 year after the date 2 of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). An
application may be considered outside the deadline “if the alien demonstrates . . .
extraordinary circumstances relating to the delay,” id. § 1158(a)(2)(D), and the
application is filed within a reasonable time, 8 C.F.R. § 1208.4(a)(5).
Extraordinary circumstances include, but are not limited to, serious illness, legal
disability, ineffective assistance of counsel, maintenance of lawful status or a grant
of parole, timely filing of an application rejected by U.S. Citizenship and
Immigration Services, and death or serious illness of a legal representative or
immediate family. Id.
8 U.S.C. § 1252(a)(2)(D) limits our jurisdiction to review claims relating to
the timeliness of an asylum application or the circumstances excusing
untimeliness to only “colorable” “constitutional claims or questions of law.”
Barco-Sandoval v. Gonzales, 516 F.3d 35, 40–41 (2d Cir. 2008); see 8 U.S.C.
§ 1158(a)(3).
Wang argues that extraordinary circumstances excused his untimely filing
because agency procedures prevented him from timely filing his application.
Specifically, he contends that the agency required him to file his application at his
master calendar hearing which was scheduled to occur after the one-year deadline
3 and that he was not permitted to lodge his application by other means. Wang’s
argument, even if treated as a question of law, is not colorable.
Beginning in 2013, noncitizens could lodge applications at the immigration
court window and IJs were permitted to take that date into account when deciding
the applicability of the one-year bar. See Guidelines for Implementation of the
ABT Settlement Agreement, Executive Office for Immigration Review, Operating
Policies and Procedures Memorandum 13-03 (Dec. 2, 2013). 1 Wang’s ability to
lodge his application before the date of his master calendar hearing is evidenced
by the fact that his application was lodged in November 2015, prior to his July 2016
master calendar hearing. Thus, as the IJ found, there were no extraordinary
circumstances preventing Wang from timely lodging his asylum claim.
Accordingly, because Wang does not raise a colorable constitutional claim
or question of law regarding the agency’s denial of asylum as time-barred, we lack
jurisdiction to review that decision and dismiss the petition to that extent. See
8 U.S.C. § 1158(a)(3); see also Barco-Sandoval, 516 F.3d at 40–41. We note that, even
if we were to find that Wang’s argument had merit, remand would be futile
1 OPPM 13-03 is available at: https://www.justice.gov/sites/default/files/eoir/legacy/2013/12/03/13-03.pdf 4 because, as discussed below, the agency reasonably denied asylum, withholding
of removal, and CAT relief based on a finding that Wang could avoid future harm
by relocating within China. See De La Rosa v. Holder, 598 F.3d 103, 108 (2d Cir.
2010) (“Remand is unnecessary if it would be pointless or futile, such as where
there is an alternative and sufficient basis for the result, the error is tangential to
non-erroneous reasoning, or the overwhelming evidence makes the same decision
inevitable.”).
B. Relocation
We review factual findings for substantial evidence, deferring “to the
factfinder’s findings based on such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion,” and review legal conclusions de novo.
Singh v. Garland, 11 F.4th 106, 113 (2d Cir. 2021) (internal quotation marks and
citation omitted); see 8 U.S.C. § 1252(b)(4)(B). The agency reasonably concluded
that Wang could safely relocate within China to avoid future harm.
An applicant who previously has suffered persecution is presumed to have
a well-founded fear of future persecution, as required for asylum. 8 C.F.R.
§ 1208.13(b)(1). Similarly, it is presumed that such an applicant’s life or freedom
would be threatened upon return, as required for withholding of removal.
5 8 C.F.R. § 1208.16(b)(1)(i). The Government may rebut these presumptions if it
establishes “by a preponderance of the evidence” that the applicant can “avoid
future persecution by relocating to another part of the applicant’s country of
nationality . . . , and under all the circumstances, it would be reasonable to expect
the applicant to do so.” 8 C.F.R. § 1208.13(b)(1)(i)(B), (ii); see also id.
§ 1208.16(b)(1)(i)(B), (ii); Singh v. BIA, 435 F.3d 216, 219 (2d Cir. 2006). In
determining whether internal relocation is reasonable, an IJ considers “whether
the applicant would face other serious harm in the place of suggested relocation;
any ongoing civil strife within the country; administrative, economic, or judicial
infrastructure; geographical limitations; and social and cultural constraints, such
as age, gender, health, and social and familial ties.” 8 C.F.R. §§ 1208.13(b)(3),
1208.16(b)(3). 2
In concluding that Wang could safely and reasonably relocate within China
to avoid future persecution, the agency reasonably relied on evidence that Chinese
citizens are generally permitted to live throughout China; Wang’s wife is Taoist
and remains unharmed in China; Wang is not a religious leader who would attract
more attention; Wang speaks the official language in China; and he is young,
2 Citations are to the regulations at the time of the IJ’s decision. 6 healthy, and able-bodied. See 8 C.F.R. §§ 1208.13(b)(3), 1208.16(b)(3); see also
Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding fear of future
persecution weakened when similarly situated family members remained
unharmed in petitioner’s native country). Further, the record contains no
evidence of persecution or abuses of individuals who practice Taoism, and the
evidence states that officials do not interfere with religious practice in some areas
of China. See 8 C.F.R. §§ 1208.13(b)(1)(i)(B), (ii), 1208.16(b)(1)(i)(B), (ii); see also
Singh, 435 F.3d at 219 (“Asylum in the United States is not available to obviate re-
location to sanctuary in one’s own country.”).
For these reasons, the agency did not err in concluding that the Government
rebutted the presumption of future persecution required for asylum and
withholding of removal. See 8 C.F.R. §§ 1208.13(b)(1), 1208.16(b)(1). The
relocation finding also is dispositive of CAT relief. See 8 C.F.R. § 1208.16(c)(3)
(listing ability to relocate as one consideration “[i]n assessing whether it is more
likely than not that an applicant would be tortured in the proposed country of
removal”); cf. Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010) (holding that
determination that there was not a well-founded fear of persecution as required
for asylum is “necessarily” dispositive of withholding of removal and CAT relief,
7 which require greater likelihood of persecution or torture).
For the foregoing reasons, the petition for review is DISMISSED in part and
DENIED in part. All pending motions and applications are DENIED and stays
VACATED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court