Minghai Tian v. Eric Holder, Jr.
745 F.3d 822
| 7th Cir. | 2014Background
- Tian, a Chinese citizen, entered the U.S. in 2001 on a culinary-exchange visa and remained after it expired; DHS placed him in removal proceedings in 2007 after an arrest during a human-trafficking investigation.
- Tian applied for asylum, withholding of removal, and CAT protection in 2008, claiming he was detained and beaten in Beijing in 1989 for supporting student demonstrations and later suffered employment and marital consequences.
- He offered no documentary corroboration of detention, injuries, or employment demotion; family and co-demonstrators were identified as potential sources of corroboration but provided nothing.
- An IJ found Tian’s asylum application untimely (one-year bar and aggravated-felony bar), found him not credible on withholding, and denied CAT protection; the BIA affirmed, treating the CAT claim as waived for lack of briefing.
- Tian petitioned for review; the court considered jurisdictional limits on timeliness review, failure to exhaust the CAT claim, and substantial-evidence review of the withholding decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of asylum filing | Tian: late filing excused by language barriers and ignorance of U.S. law | Government: no changed or extraordinary circumstances to excuse delay; statutory one-year bar applies | Dismissed for lack of jurisdiction to review BIA’s factual timeliness finding |
| CAT protection | Tian: raised UNCAT/CAT relief on appeal to BIA | Government: Tian failed to brief/argue CAT to the BIA, so claim was not preserved | Denied for failure to exhaust administrative remedies (waived before BIA) |
| Withholding of removal (past persecution) | Tian: testified to past detention, beatings, demotion, and ongoing risk if returned | Government: testimony implausible and uncorroborated; Tian lived and advanced in China and left with government permission | Denied—substantial evidence supports IJ/BIA credibility finding that testimony was implausible |
| Withholding of removal (corroboration requirement) | Tian: corroboration unavailable due to changed contacts and circumstances | Government: corroboration was reasonably available (family, co-demonstrators, employer); failure to provide it fatal | Denied—REAL ID Act allows corroboration; Tian did not show evidence was reasonably unavailable |
Key Cases Cited
- Bitsin v. Holder, 719 F.3d 619 (7th Cir.) (describing one-year asylum exceptions and limits on judicial review)
- Almutairi v. Holder, 722 F.3d 966 (7th Cir.) (holding courts lack jurisdiction to review BIA factual determinations on asylum timeliness exceptions)
- FH-T v. Holder, 723 F.3d 833 (7th Cir.) (exhaustion principles and need to present arguments to BIA for appellate review)
- El-Gazawy v. Holder, 690 F.3d 852 (7th Cir.) (issues waived where BIA briefing too thin to present the claim)
- Jabr v. Holder, 711 F.3d 835 (7th Cir.) (standard for reversing agency withholding-of-removal findings under substantial-evidence review)
- Yi Xian Chen v. Holder, 705 F.3d 624 (7th Cir.) (definition and examples of persecution)
- Raghunathan v. Holder, 604 F.3d 371 (7th Cir.) (REAL ID Act corroboration requirement and burden to show evidence reasonably unavailable)