TAI v. MUKASEY, 07-2867 (2nd Cir. 10-15-2008)
ZOU ZONG TAI, Petitioner, v. MICHAEL B. MUKASEY, ATTORNEY GENERAL,[fn1]Respondent.
No. 07-2867-ag RAC.United States Court of Appeals, Second Circuit.
October 15, 2008.Page 1
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.][fn1] Pursuant to Federal Rule of Appellate Procedure43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as a respondent in this case.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.Page 2
FOR PETITIONER: Joshua Bardavid (David X. Feng,on the brief), New York, New York.
FOR RESPONDENT: Timothy Stanton (Monica G. Antoun andSusan K. Houser, on the brief), forJeffrey S. Bucholtz, Acting Assistant Attorney General,Civil Division, U.S. Department of Justice, Washington,D.C.
PRESENT: HON. DEBRA A. LIVINGSTON, CircuitJudge, HON. WILFRED FEINBERG, HON. JOHN M. WALKER,JR., Senior Circuit Judges.
Petitioner Zou Zong Tai, a native and citizen of the People's Republic of China, seeks review of the June 7, 2007, order of the BIA affirming the September 14, 2005, decision of Immigration Judge ("IJ") Paul A. Defonzo, denying petitioner's application for withholding of removal and relief under the Convention Against Torture ("CAT"). In re Zou ZongTai, No. A79 141 088 (B.I.A. June 7, 2007), aff'g
No. A79 141 088 (Immig. Ct. N.Y. City Sep. 14, 2005). We assume the parties' familiarity with the underlying facts and procedural history of the case.
As a preliminary matter, we note Tai argues in this court that his inability openly to practice Falun Gong constitutes persecution, even if he would be able to avoidPage 3
any punishment at the hands of Chinese authorities by practicing at home. In his brief to the BIA, however, Tai did not identify this legal issue or make any arguments that would have called it to the attention of the BIA. Instead, Tai argued that the fact that he has practiced Falun Gong was enough, standing alone, to meet the standard for withholding of removal (a claim we address below). Because Tai did not argue to the BIA that an inability to practice openly is persecution, he has failed to exhaust his administrative remedies with respect to this issue. "[W]e may review a final order of removal only if `the alien has exhausted all administrative remedies available to the alien as of right.'" Zhong v. U.S. Dep't ofJustice, 480 F.3d 104, 118 (2d Cir. 2007) (quoting8 U.S.C. § 1252(d)(1)); see also Karaj v. Gonzales,462 F.3d 113, 117 (2d Cir. 2006). Although issue exhaustion is not jurisdictional, it is mandatory unless waived by the government.Zhong, 480 F.3d at 125 n. 25. In this case, the government clearly invoked failure to exhaust as a defense to the legal error Tai raised on appeal. See Respondent's Br. at 18 ("Mr. Tai argues that he should be granted withholding of removal because the inability to practice one's religion inherently constitutes persecution. Mr. Tai failed to raise this broadPage 4
religious freedom claim before the Board, so he has failed to exhaust this argument."). Because the government asserts exhaustion as a defense, we have no discretion to waive exhaustion under Zhong. Hence, we address only the claims that Tai made to the BIA.
When the BIA does not expressly "adopt" the IJ's decision, but its brief opinion closely tracks the IJ's reasoning, we may consider both the IJ's and the BIA's opinions for the sake of completeness if doing so does not affect the Court's ultimate conclusion. Jigme Wangchuck v. DHS, 448 F.3d 524, 528
(2d Cir. 2006). The BIA never explicitly determined whether it found Tai credible, and did not adopt and affirm the IJ's decision; rather, it observed that the IJ's "observation of inconsistencies in the witness' testimony [was] irrelevant to his analysis of [Tai's] claim" because the IJ gave Tai "`the benefit of the doubt with regard to his claimed Falun Gong practice. . . .'" Accordingly, in reviewing the agency's determination, this Court assumes Tai's credibility. SeeYan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
We review de novo questions of law and the application of law to undisputed fact. See, e.g., Secaida-Rosales v.INS, 331 F.3d 297, 307 (2d Cir. 2003). We review thePage 5
agency's factual findings under the substantial evidence standard, treating them as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary."8 U.S.C. § 1252(b)(4)(B); see Zhou Yun Zhang v. INS,386 F.3d 66, 73 n. 7 (2d Cir. 2004), overruled onother grounds by Shi Liang Lin v. U.S. Dep't of Justice,494 F.3d 296, 305 (2d Cir. 2007) (en banc). However, we will vacate and remand for new findings if the agency's reasoning or its fact-finding process was sufficiently flawed. Cao HeLin v. U.S. Dep't of Justice, 428 F.3d 391, 406 (2d Cir. 2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir. 2004).
We find that the BIA properly denied Tai's application for withholding of removal. The BIA found that it is not "more likely than not" that Tai will be persecuted on account of his adherence to Falun Gong. Because Tai claims that he began practicing Falun Gong in the United States, his claim rests solely on future persecution, and he was required to show that it is more likely than not that his "life or freedom [will] be threatened" because of his Falun Gong practice. SeeRamsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). As this Court has recently explained, Tai had to demonstrate a "clear probability" that authorities in his country are cognizant of or "likely toPage 6
become aware of his activities." Leng v. Mukasey,528 F.3d 135, 143 (2d Cir. 2008).
In the instant matter, the BIA reasonably found that Tai failed to meet this standard. Kyaw Zwar Tun v. INS,445 F.3d 554, 565 (2d Cir. 2006) (citing Matter of Mogharrabi,19 I. N. Dec. 439, 446 (B.I.A. 1987)). Tai testified that the Chinese government is not aware that he practices Falun Gong and that if he returns to China, "[he] would not go to public places to practice but [would] mostly practice at home." The possibility that a neighbor "might report" his Falun Gong practice is too speculative to compel a reasonable adjudicator to conclude that Tai has shown that "it is more likely than not" he will be persecuted in China.8 C.F.R. § 1208.16(b)(2); see Zhou Yun Zhang, 386 F.3d at 73 n. 7; cf. Kyaw Zwar Tun, 445 F.3d at 565. Under these circumstances, the BIA reasonably found that Tai failed to demonstrate eligibility for withholding of removal.
Because Tai's CAT claim relies on the same factual predicate as his withholding claim, the failure of the withholding claim necessarily means that Tai failed to provide particularized evidence that he would likely be tortured if removed to China.See Paul v. Gonzales, 444 F.3d 148 (2d Cir. 2006);Mu Xiang Lin v. U.S. Dep't ofPage 7Justice, 432 F.3d 156, 159-60 (2d Cir. 2005) (requiring particularized evidence of a likelihood of torture to establish eligibility for CAT relief). Accordingly, the agency did not err in denying him CAT relief.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DENIED as moot.Page 1