Nian v. Holder (9th Cir 6 28-12) asylum only proceeding and dismissed
Published Opinion http://www.ca9.uscourts.gov/datastore/opinions/2012/06/28/07-73643.pdf andSummary Dismissal http://www.ca9.uscourts.gov/datastore/memoranda/2012/06/28/07-73643.pdf FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BAO TAI NIAN, Petitioner, No. 07-73643 v. Agency No. A074-394-421 ERIC H. HOLDER Jr., Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 12, 2012—San Francisco, California Filed June 28, 2012 Before: Ferdinand F. Fernandez, Ronald M. Gould, and Carlos T. Bea, Circuit Judges. Opinion by Judge Bea 7685
NIAN v. HOLDER 7687 COUNSELChristy A. Chouteau, Aguirre Law Group A.P.C., San Diego,California, for the petitioner.Eric W. Marsteller, U.S. Department of Justice, Office ofImmigration Litigation, Civil Division, Washington, DC, forthe respondent. OPINIONBEA, Circuit Judge: Bao Tai Nian (“Bao”), a native and citizen of China, peti-tions for review of the Board of Immigration Appeals’(“BIA”) decision denying his application for asylum, with-holding of removal, and protection under the ConventionAgainst Torture (“CAT”). Bao arrived in the United States asan alien crew member. His asylum proceeding was thus lim-ited in scope—a so-called “asylum-only” proceeding.Because the Immigration Judge (“IJ”) and BIA did not issuea final order of removal, this case presents the questionwhether we have jurisdiction to consider Bao’s petition. Weconclude that we have jurisdiction over the petition, and wedeny review.
7688 NIAN v. HOLDERI. Content of “asylum-only” proceedings. This case involves an “asylum-only” proceeding under 8C.F.R. § 208.2(c). “Asylum-only” proceedings apply to cer-tain groups of aliens who are not entitled to full asylum pro-ceedings under the Immigration and Nationality Act (“INA”),including alien crew members, stowaways, and aliens whohave entered the country under the Visa Waiver Program. 8C.F.R. § 208.2(c)(1). These classes of aliens may have beengiven limited and temporary permission to enter the UnitedStates, as is the case for crew members landing temporarilyin the United States and for visitors to the United States underthe Visa Waiver Program. However, these limitations meanthat these aliens may not challenge their removal, except thatthey may apply for asylum. See, e.g., 8 U.S.C. § 1282(b)(“[A]ny immigration officer may, in his discretion, if hedetermines that an alien is not a bona fide crewman, or doesnot intend to depart on the vessel or aircraft which broughthim . . . remove[ ] [the crewman] from the United States. . . .”); 8 U.S.C. § 1187(b)(2) (“An alien may not be provideda waiver under the [Visa Waiver Program] unless the alienhas waived any right . . . to contest, other than on the basisof an application for asylum, any action for removal of thealien.”). “Asylum-only,” however, does not mean that the petitioneris limited to asylum in the relief he seeks. 8 C.F.R.§ 208.2(c)(3)(i). No, he may also seek withholding of removaland protection under the CAT in the “asylum-only” proceed-ing. Id.; 8 C.F.R. § 1240.1(a)(1)(iii).1 The limited scope of theproceedings means that parties are prohibited from raising“any other issues, including but not limited to issues of admis-sibility, deportability, eligibility for waivers, and eligibility 1 The proceedings would more aptly be called “asylum and withholdingof removal and protection under the CAT-only.” See Restrepo v. Holder,610 F.3d 962, 964 (7th Cir. 2010) (“the phrase [‘asylum-only’] is a misno-mer” because the alien may also ask for withholding of removal). How about "asylum & related" relief only proceedings?
NIAN v. HOLDER 7689for any other form of relief.” 8 C.F.R. § 208.2(c)(3)(i). Sincethe alien is considered removable—otherwise he would not bein this proceeding—the IJ will not issue a final order ofremoval; the IJ determines only whether the petitioner is enti-tled to asylum, withholding of removal, or protection underthe CAT. Id. If the petitioner is not entitled to any of the lim-ited relief specified, he is removable and there is no bar to hisremoval. So understood, we proceed to consider Bao’s claims.II. Petitioner’s factual claims; proceedings below. Bao was a crew member aboard the Zhih Yung, a fishingvessel seized by the Coast Guard near San Diego. The CoastGuard found over 150 Chinese nationals on the ship andarrested the crew members for alien smuggling. Bao agreedto serve as a material witness in the U.S. government’s prose-cution, and he signed a statement against the alien smugglers—so-called “snakeheads.” He was listed as a government wit-ness, but he did not testify in open court. Bao filed for asylum, withholding of removal, and protec-tion under the CAT. In his application, Bao cited two typesof persecution as the basis of his claims: he had been perse-cuted for violating China’s one-child policy and feared furtherpersecution if he returned, and he feared persecution at thehands of the snakeheads for having openly agreed to be a wit-ness against them in the United States. Bao’s application was dismissed by the IJ for lack of juris-diction because Bao was an alien crew member, and aliencrew members must file “asylum-only” applications. The BIAaffirmed the IJ’s dismissal. The Department of HomelandSecurity (“DHS”) subsequently brought the current “asylum-only” proceedings under 8 C.F.R. § 208.2(c) by serving Baowith a Form I-863. On June 4, 2004, the IJ denied Bao’sapplications for asylum, withholding of removal, and protec-tion under the CAT. The BIA affirmed without opinion. Baopetitioned for review in the Ninth Circuit. The Ninth Circuit
7690 NIAN v. HOLDERgranted DHS’s unopposed motion to remand to the BIA toconsider a letter from an Assistant United States Attorney.The letter recommended that Bao be permitted to remain inthe United States after having given the government informa-tion and agreeing to be listed as a government witness in theprosecution of the snakeheads. The BIA again dismissedBao’s appeal, this time in a written decision. Bao timely peti-tioned for review.III. Jurisdiction to consider petitioner’s petition for review of denial of relief in “asylum-only” proceed- ings.  Under 8 U.S.C. § 1252(a)(1), we have jurisdiction toreview a “final order of removal.” The “asylum-only” pro-ceedings below were conducted pursuant to 8 C.F.R.§ 208.2(c) because Bao entered the country as an alien crewmember. Thus, the IJ and BIA denied Bao’s claims for asy-lum, withholding of removal, and protection under the CAT,but did not issue a final order of removal. We therefore mustanswer the question whether the BIA’s denial of asylum in“asylum-only” proceedings is the equivalent of a final orderof removal such that we have jurisdiction under 8 U.S.C.§ 1252(a)(1).2  We have never addressed this issue in a publishedopinion. The four circuits to have considered the question allheld that they had jurisdiction over “asylum-only” proceed-ings even in the absence of a final order of removal. SeeRestrepo v. Holder, 610 F.3d 962, 964 (7th Cir. 2010) (exer-cising jurisdiction over alien crew member’s petition in“asylum-only” proceedings); Mitondo v. Mukasey, 523 F.3d784, 787 (7th Cir. 2008); Shehu v. Att’y Gen., 482 F.3d 652, 2 The parties submitted letter briefs on the issue and both agree that thiscourt has jurisdiction to review Bao’s petition. However, “we have theobligation to confirm our jurisdiction sua sponte“ before reaching the mer-its. Gupta v. Thai Airways Int’l, Ltd., 487 F.3d 759, 763 (9th Cir. 2007).
NIAN v. HOLDER 7691656 (3d Cir. 2007); Kanacevic v. INS, 448 F.3d 129, 134-35(2d Cir. 2006) Nreka v. Att’y Gen., 408 F.3d 1361, 1367 (11thCir. 2005). The Second, Third, Seventh and Eleventh Circuitsall concluded that jurisdiction lies over “asylum-only” pro-ceedings because the BIA’s denial of relief is the “functionalequivalent” of a final order of removal. E.g., Kanacevic, 448F.3d at 134.  An alien crew member who lands in the United Stateswithout authorization or whose authorization is revoked is notentitled to a hearing and is statutorily required to be “removedfrom the United States at the expense of the transportationline which brought him.” 8 U.S.C. § 1282(b); see also 8C.F.R. § 252.2(b) (an alien crew member whose landing per-mit has expired may be “removed from the United Stateswithout a hearing, except as provided in § 208.2(b)(1),” theasylum-only statute); 8 U.S.C. § 1284(c). Thus, Bao is alreadyremovable, pending only the result of his “asylum-only” pro-ceedings. Once he is denied any relief, Bao can be removedby “any immigration officer.” 8 U.S.C. § 1282(b). As the Second Circuit stated in Kanacevic, “Although thedenial of asylum in [an ‘asylum-only’]3 case does not occurin the context of removal proceedings, denial of the asylumapplication is the functional equivalent of a removal order. . . .” 448 F.3d at 134. The panel continued, “Were we to ele-vate form over substance by holding that the disposition ofasylum-only proceedings does not function as a final order ofremoval to confer jurisdiction, we would create uncertaintyover exactly what procedure [an ‘asylum-only’] applicantcould pursue in order to obtain review of his or her asylumproceedings in the Courts of Appeals.” Id. at 135. See alsoMitondo, 523 F.3d at 787 (“an order that is proper only if the 3 Kanacevic considered the jurisdictional issue in the context of a VisaWaiver Program applicant. 448 F.3d at 134. Visa Waiver Program appli-cants are subject to the same “asylum-only” proceedings as alien crewmembers. 8 C.F.R. § 208.2(c)(1)(iii).
7692 NIAN v. HOLDERalien is removable implies an order of removal” (emphasis inoriginal)). Further, we have stated in a different context that, in certaincircumstances, “the BIA’s order dismissing [an] appeal on thequestion of asylum is necessarily a final order . . . [because]the [BIA] considered and decided the merits of the appealbefore dismissing it.” Junming Li v. Holder, 656 F.3d 898,904 (9th Cir. 2011) (exercising jurisdiction to review theBIA’s denial of asylum where the BIA also remanded forcompletion of background checks required before withholdingof removal could be granted).  For the same reasons as expressed in the opinions ofour sister circuits, we hold that the denial of an alien crewmember’s petition for asylum and other relief in “asylum-only” proceedings is the “functional equivalent” of a finalorder of removal. Such an order constitutes a “final order ofremoval” within the meaning of 8 U.S.C. § 1252(a)(1). Thus,we have jurisdiction to review Bao’s petition from the BIA’sdenial of asylum, withholding of removal, and protectionunder the CAT.IV. Merits of petitioner’s claims. For the reasons stated in a separate memorandum disposi-tion filed concurrently with this opinion, we deny Bao’s peti-tion for review. PETITION DENIED.
FILED NOT FOR PUBLICATION JUN 28 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUITBAO TAI NIAN, No. 07-73643 Petitioner, Agency No. A074-394-421 v. MEMORANDUM *ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 12, 2012 San Francisco, CaliforniaBefore: FERNANDEZ, GOULD, and BEA, Circuit Judges. Bao Tai Nian (“Bao”), a native and citizen of China, petitions for review ofthe Board of Immigration Appeals’ (“BIA”) decision denying his application forasylum, withholding of removal, and protection under the Convention AgainstTorture (“CAT”). For the reasons discussed in a separate opinion filed * This disposition is not appropriate for publication and is not precedentexcept as provided by 9th Cir. R. 36-3.
concurrently with this memorandum disposition, we have jurisdiction under 8U.S.C. § 1252(a)(1). We deny the petition for review. Substantial evidence supports the BIA’s conclusion that Bao was notcredible with regard to his claim of persecution on account of his violation ofChina’s one-child policy. There was a ten-year discrepancy between Bao’stestimony that he received sterilization notices in 1986 or 1987, and thesterilization notices, dated in 1995 and 1997, which he submitted in evidence. Thisinconsistency goes to the heart of Bao’s pre-REAL ID Act claim. See Pal v. INS,204 F.3d 935, 938 (9th Cir. 2000) (sustaining adverse credibility determinationbased in part on a two-month inconsistency between testimony and documentaryevidence concerning date of the alleged incident of persecution). Substantial evidence also supports the BIA’s conclusion that Bao failed toestablish a well-founded fear of future persecution at the hands of the criminalalien smugglers, the “snakeheads.” Bao did not demonstrate that any persecutionfrom the “snakeheads” would be on account of political opinion or perceivedpolitical opinion.1 See Soriano v. Holder, 569 F.3d 1162, 1164–65 (9th Cir. 2009)(holding that petitioner did not establish well-founded fear of persecution on 1 Bao does not claim that any persecution would be on account of hismembership in a particular social group. 2
account of political opinion where he presented evidence that gang members wouldretaliate against him for having served as an informant, but no evidence aboutpolitical opinion or perceived political opinion; “Personal animosity is not politicalopinion.”).2 Because Bao failed to meet his burden of proof for asylum, he necessarilyfailed to meet the higher burden of proof for withholding of removal. Ren v.Holder, 648 F.3d 1079, 1094 n.17 (9th Cir. 2011). Substantial evidence alsosupports the BIA’s conclusion that Bao failed to meet his burden for relief underthe CAT. To qualify for protection under the CAT, Bao must demonstrate that it ismore likely than not that he would be tortured if he returned to China. Zhou v.Gonzales, 437 F.3d 860, 871 (9th Cir. 2006). The BIA noted that Bao had notbeen threatened at all since his 1999 participation in the smuggling prosecution.The letter from the AUSA speaks in generalities about “snakehead” retaliation, andpresents no individualized evidence of threat of torture to Bao. Further, Baopresented no evidence that anybody associated with the “snakeheads” harmed or 2 The BIA did not err in stating that the letter from the Assistant UnitedStates Attorney (“AUSA”) did not “alter [the] analysis.” The applicable regulationclearly states that, absent written authorization from the Commissioner of theImmigration and Naturalization Service (“INS”), the INS shall not be bound bycooperation agreements that government agencies may reach with alien witnesses.See 28 C.F.R. § 0.197. 3
threatened his family. He did not testify that the unknown people who beat up hischildren around the time he participated in the prosecution were connected with the“snakeheads,” and he admitted that nothing had happened to his children sincethen.3 Finally, Bao was not denied due process with respect to any difficulties withinterpretation during his asylum hearing. Bao said he was comfortable withMandarin and specifically stated he did not want a continuance to seek aninterpreter who spoke his native dialect. PETITION DENIED. 3 Bao’s claims that he faces torture at the hands of the Chinese governmentalso fail. Beyond speculation that the government will torture him for perceivedinvolvement with alien smuggling, Bao does not cite to any evidence supportingsuch a claim. 4