Da Yong Piao v. Lynch
659 F. App'x 16
2d Cir.2016Background
- Da Yong Piao, a Chinese national, appealed the BIA’s July 29, 2014 decision affirming an IJ’s denial of asylum, withholding of removal, and CAT relief; this Court reviewed both IJ and BIA opinions.
- Piao had been briefly detained, fined, and his restaurant closed after admitting he employed a North Korean refugee; members of his unregistered Christian church were also sometimes detained and fined.
- Piao claimed persecution based on political opinion (opposition to China’s North Korean immigration policies) and on his practice of Christianity in an unregistered church.
- The agency concluded the detentions, small fines, and short closure did not rise to past persecution and found insufficient nexus to a protected ground for asylum/withholding.
- The agency also found no well-founded fear of future persecution, rejecting a pattern-or-practice showing based on State Department reporting and noting similarly situated church members were not persecuted.
- Piao failed to exhaust specific CAT arguments before the BIA; the Second Circuit therefore declined jurisdiction over CAT relief.
Issues
| Issue | Piao's Argument | Lynch's Argument | Held |
|---|---|---|---|
| Whether detentions, fines, and restaurant closure amounted to past persecution | These harms were severe and amounted to persecution | Harms were short, minor, and did not rise above harassment | Court: Not persecution; agency reasonably concluded harms were insufficient |
| Whether police actions were motivated by a protected ground (nexus) | Arrests tied to his political opinion and Christian practice | Arrests were for illegally employing a North Korean refugee, not targeting protected grounds | Court: Nexus not shown; agency reasonably found no protected-ground motivation |
| Whether Piao has a well-founded fear of future persecution (singled out or pattern/practice) | Past incidents and State Dept. report show risk to Christians/unregistered churches | Similar church members were not persecuted; State Dept. report does not show persecution pattern | Court: No well-founded fear; speculative and no pattern-or-practice shown |
| Whether the Court may review CAT claim | CAT relief meritorious and should be considered | Piao failed to exhaust CAT claim before BIA | Court: No jurisdiction — Piao failed to exhaust the CAT challenge before the BIA |
Key Cases Cited
- Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524 (2d Cir. 2006) (court may review both IJ and BIA opinions)
- Beskovic v. Gonzales, 467 F.3d 223 (2d Cir. 2006) (non-life-threatening abuse can constitute persecution but must exceed harassment)
- Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61 (2d Cir. 2002) (economic harm must be substantial; financial evidence required)
- Jian Xing Huang v. U.S. INS, 421 F.3d 125 (2d Cir. 2005) (speculative fear of future persecution insufficient)
- Melgar de Torres v. Reno, 191 F.3d 307 (2d Cir. 1999) (lack of harm to similarly situated persons undermines well-founded fear)
- INS v. Bagamasbad, 429 U.S. 24 (1976) (courts need not decide issues unnecessary to the outcome)
- Karaj v. Gonzales, 462 F.3d 113 (2d Cir. 2006) (failure to exhaust administrative remedies bars review of distinct claims)