Zeng v. Barr

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 10, 2020
• Docket: 19-9539
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 10, 2020 _________________________________ Christopher M. Wolpert Clerk of Court ZHIPENG ZENG,

Petitioner,

v. No. 19-9539 (Petition for Review) WILLIAM P. BARR, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, PHILLIPS, and EID, Circuit Judges. _________________________________

Petitioner Zhipeng Zeng is a native and citizen of China who seeks review of the

denial by the Board of Immigration Appeals (BIA) of his application for asylum,

withholding of removal, and protection under the Convention Against Torture (CAT).

Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny the petition for review.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. BACKGROUND

Petitioner was admitted to the United States as a nonimmigrant visitor. He filed

his application for relief on July 3, 2013. An asylum officer denied his application and

referred his case to an immigration judge (IJ). The Department of Homeland Security

then commenced removal proceedings against Petitioner for remaining in the United

States longer than permitted. See 8 U.S.C. § 1227(a)(1)(B).

At his merits hearing Petitioner testified as follows: In March 2012 he received a

notice from the demolition department of Jilin City in China that the building he resided

in with his mother was going to be demolished by May 1. He refused to move, though,

until he received additional compensation, believing that the price he was offered was too

low. The demolition department turned off the building’s utilities early in April.

In the early morning of June 21, Petitioner went downstairs in his building and

discovered about 100 people from the demolition department. They asked him to vacate

that same day. He replied that he still would not move without a better offer. When they

would not allow him to leave the building, he went upstairs to call the police, who said

they could not help him. He came downstairs again later that morning and repeated that

he would not move until he received reasonable compensation. He was attacked with

knives by five workers, resulting in his hospitalization for 28 days. He believed he was

attacked because he “was strongly against this demolition policy from the government.”

Certified Administrative Record (CAR) 170; see id. at 160 (describing the policy he

opposed as “the government would try to occupy people’s lands by force”). Later a

2 neighbor was also beaten, but he did not know the person and had never communicated

with him.

During Petitioner’s hospitalization he and his mother received threatening phone

calls telling them not to involve the police or complain about the attack. Also during that

time, the unit he shared with his mother was demolished. The two moved to a new home

in the countryside. Even in the new home he received repeated phone calls, warning him

that he should not take legal action against his attackers or contact the police. Because he

feared he could still be harmed by his attackers, who had not yet been caught, he fled to

the United States about a year after the attack.

The IJ denied (1) Petitioner’s claims for asylum and withholding because he had

not shown he was attacked on account of his political opinion, and (2) his claim for

protection under the CAT because he had not shown that his attackers were public

officials or that they were acting with the acquiescence of the government. The BIA

affirmed the IJ’s decision without opinion.

Petitioner sought review in this court, but we did not address the merits. At the

request of Petitioner and the government, we remanded to the BIA to consider the IJ’s

conclusion that the harm Petitioner suffered constituted past torture, but that he was still

ineligible for relief under the CAT because he did not establish that his attackers were

public officials or individuals acting with the acquiescence of such officials. On remand

the BIA in turn remanded to the IJ for further fact-finding regarding the identities of the

attackers.

3 The parties agreed that no additional evidentiary hearing was needed and that the

decision on remand could be based on the existing record. Because the IJ who originally

handled the matter had been transferred, a different IJ was assigned to the case. But

instead of making a finding as to the identities of Petitioner’s attackers, the IJ ruled that,

even assuming they were public officials, Petitioner was still ineligible for protection

under the CAT as he could not show that it was more likely than not he would be tortured

if returned to China. (Going beyond the scope of the remand, the IJ also denied asylum

and withholding of removal, ruling that Petitioner failed to establish that he was harmed

because of his political opinion.)

Petitioner appealed the IJ’s decision to the BIA, which affirmed the IJ’s denial of

relief under the CAT because he had not established likely future torture. He has

petitioned for our review of that decision, as well as the BIA’s earlier denial of his

asylum and withholding claims. We address all three claims for relief.

II. DISCUSSION

“Our scope of review directly correlates to the form of the BIA decision.”

Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th Cir. 2007). When a single BIA

member issues a summary affirmance without opinion, as with the first BIA opinion in

Petitioner’s case, we consider the IJ’s opinion to be the agency decision for the purpose

of appeal and “look[] to that opinion to determine the agency’s rationale.” Id. But “if a

single BIA member issues a brief order affirming, modifying, or remanding the IJ’s

order,” as with the second BIA decision in this case, then the BIA decision is considered

the final removal order. Id. In that circumstance, however, “we may consult the IJ’s

4 opinion to the extent that the BIA relied upon or incorporated it.” Id. (internal quotation

marks omitted). “We review . . . legal determinations de novo, and . . . findings of fact

under a substantial-evidence standard.” Niang v. Gonzales, 422 F.3d 1187, 1196 (10th

Cir. 2005). Unless “any reasonable adjudicator would be compelled to conclude to the

contrary,” we treat the findings of fact as conclusive. 8 U.S.C. § 1252(b)(4)(B).

A. Asylum and Withholding of Removal

To be eligible for asylum and withholding of removal, an applicant must

demonstrate he was persecuted or has a well-founded fear of persecution on account of

his race, religion, nationality, membership in a particular social group, or political

opinion. See Niang, 422 F.3d at 1194, 1195. An applicant must therefore provide

evidence that the individuals who harmed him were motivated to do so because of the

protected ground, thus establishing a “nexus” between the harm and the ground. See INS

v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (because asylum statute “makes motive

critical, [applicant] must provide some evidence of [his persecutors’ motives], direct or

circumstantial”); Niang, 422 F.3d at 1200. On appeal Petitioner challenges the IJ’s

determination that he was not attacked because of his political opinion. He contends that

he was attacked for having an imputed “anti-government political stance,” as he

“protested by words and action the unfair treatment by the Chinese government on the

barbaric eminent domain policy.” Aplt. Br. at 14.

The evidence here, however, supports the IJ’s finding that Petitioner opposed his

building’s demolition for only personal reasons, not because he held a political opinion

against the government’s policy of eminent domain. He never organized or participated

5 in any protests of the demolition of his building or of others nearby. When asked why he

had not protested other demolitions, he said that “it wasn’t the place I, I lived so I did not

protest.” CAR 176. He also expressed several times that his primary concern was

inadequate financial compensation. Although Petitioner said he told the demolition

department that he was “very strongly against this policy to demolish our homes,” CAR

171, he also told an official he would move if he was offered enough compensation.

The Seventh Circuit confronted a similar circumstance in Weiping Chen v. Holder,

744 F.3d 527 (7th Cir. 2014). The petitioner had been detained and beaten for refusing to

vacate his store and protesting its demolition. See id. at 530. But he had “not engage[d]

in any of the classic examples of political activity,” having taken part in only one public

sit-in. Id. at 534. The court concluded that his harm was the result of “a personal

property dispute rather than an expression of political opinion.” Id. Unpublished

opinions by other circuits have also differentiated between a personal opposition to

demolition of one’s property and holding a political opinion against China’s eminent-

domain policy. See, e.g., Bin Huang v. U.S. Att’y Gen., 569 F. App’x 715, 719 (11th Cir.

2014) (“Huang’s incident involved a personal dispute with the government, where he was

beaten for trying to stop his home’s demolition, not for his taking a general political

stance against corruption.”); Zhen Hui Liu v. Mukasey, 257 F. App’x 424, 426 (2d Cir.

2007) (“Liu and his father protested the confiscation of their family’s land in an effort to

protect the family’s livelihood, not challenge the legitimacy of China’s government.”).

Petitioner urges us to follow the Ninth Circuit’s decision in Xinbing Song v.

Sessions, 882 F.3d 837, 841–42 (9th Cir. 2017), which held that a petitioner who was

6 detained and beaten for protesting the Chinese government’s attempt to demolish a

building in which he owned a unit was persecuted for his “anti-government anti-eminent

domain political opinion.”1 But the petitioner in Song had organized a protest with over

100 neighbors, identified himself to a government official as a protest leader, and hung a

banner from his unit stating that he “would rather die than give up his property.” Id. at

840. Government officials also denounced Song’s protest for being “anti-government.”

Id. Petitioner here, in contrast, was not involved in any activity that elevated his

opposition to his building’s demolition to an actual or perceived political action.

Petitioner nevertheless contends that his eligibility for asylum and withholding

cannot be resolved without an identification of his attackers. He also asserts that because

he was found to be a credible witness, there should be no dispute that his attackers were

government officials. But regardless of the identity of his attackers, his failure to

establish that he was harmed because of his political opinion precludes asylum eligibility.

This lack of nexus also disposes of his argument that a “severe form of past persecution

alone, as Petitioner here with permanent handicap, and without more, entitles the victim

to an asylum grant.” Aplt. Br. at 11. And because the burden of proof for withholding of

removal is “more demanding” than that for asylum, he necessarily fails to show he is

entitled to relief under the withholding statute as well. Elzour v. Ashcroft, 378 F.3d 1143,

1149 (10th Cir. 2004) (internal quotation marks omitted).

1 In his brief, Petitioner cites to the Ninth Circuit’s decision in Song v. Sessions, 877 F.3d 889 (9th Cir. 2017), but that decision was amended and superseded at 882 F.3d 837 (9th Cir. 2017). 7 B. Convention Against Torture

To receive the protections of the CAT, an applicant must “show that it is more

likely than not that he or she would be tortured if removed to [a particular] country,”

Elzour, 378 F.3d at 1150, and that the torture would be “inflicted by or at the instigation

of or with the consent or acquiescence of a public official or other person acting in an

official capacity,” 8 C.F.R. § 1208.18(a)(1). Under the CAT an applicant “is not entitled

to a presumption of future torture based on evidence of past torture; nor does a showing

of past torture automatically render [him] CAT eligible.” Niang, 422 F.3d at 1202.

Petitioner argues that the BIA erred in denying relief under the CAT by (1) ignoring

alleged evidence of his risk of future torture, and (2) failing to adhere to this court’s

mandate “to clearly make an identification of the perpetrators” of the attack on Petitioner.

Aplt. Br. at 12. Both grounds are without merit.

First, Petitioner contends that the BIA did not consider that he attempted to have

his attackers arrested by the police and consequently received threats to his and his

mother’s life and safety. But the BIA did refer to the IJ’s findings, which considered the

threats Petitioner received while hospitalized and described Petitioner’s efforts to contact

the police in hopes of locating his attackers. Although Petitioner argues that there is no

indication that the threats ceased when he left China, he has offered no evidence of any

present threats. His testimony before the IJ claimed only that while he was hospitalized

and while he was out of the hospital receiving treatment for his injuries, he and his

mother received phone calls in 2012 and 2013 threatening to hurt him if he contacted the

police. The lack of evidence of any recent or ongoing threats, coupled with the already-

8 completed demolition of the building and the ability of his mother to live in safety after

the attack, provides substantial evidence to support the BIA’s decision that he failed to

show likely future torture upon return.

Petitioner claims that the BIA also erred because it did not make a finding of the

identity of his attackers in accordance with our remand order and that this mistake

requires that we remand again to the BIA. But Petitioner cannot show how he was

harmed by the absence of this finding. See Nazaraghaie v. INS, 102 F.3d 460, 465 (10th

Cir. 1996) (“[E]ven assuming arguendo that the BIA failed to weigh certain pieces of

evidence fully, the result in this case would be no different. Any error on the part of the

BIA is therefore harmless . . . .”). Instead of making this finding, the BIA assumed that

his past torture was “by or at the acquiescence of public officials,” CAR 4, but

determined that he still could not establish likely future torture and was therefore

ineligible for relief under the CAT.

III. CONCLUSION

We DENY the petition for review.

Entered for the Court

Harris L Hartz Circuit Judge