414 F. App'x 790
6th Cir.2011Background
- Lian is a Chinese citizen from Changle, Fujian Province, who entered the United States around November 8, 2000 without valid entry documents.
- DHS issued a Notice to Appear on December 18, 2000; Lian conceded removability before an IJ on December 18, 2002.
- Lian sought asylum, withholding of removal, and CAT relief in March 2003; merits hearing occurred December 18, 2006.
- In China, Lian alleges government suppression related to his relationship and a pregnancy; he was allegedly beaten by village police in 2000 and his girlfriend underwent an abortion.
- Lian obtained new counsel in 2001; the IJ held that asylum filing was untimely and that even with timely filing, the evidence did not show eligibility for asylum; the BIA affirmed; the case was later reissued to correct service defects; Lian filed a petition for review.
- The district court judge designated is not directly involved in the decision; the Sixth Circuit reviews the BIA’s decision under the substantial-evidence standard and common-law review of legal questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether asylum denial is reviewable given untimeliness | Lian argues for review of asylum denial on constitutional/structural grounds | BIA/IJ treat untimeliness as a discretionary/factual matter not subject to review | The petition is dismissed for asylum due to lack of jurisdiction over untimeliness |
| Whether withholding of removal can be sustained despite untimely asylum | Lian contends withholding should be considered on the merits | Even if timely, evidence fails to show likelihood of persecution or torture | Substantial evidence supports denial of withholding of removal on the merits |
| Whether CAT relief could be granted given the record | Lian seeks relief under CAT based on fear of torture | Record does not show more likely than not torture if removed | CAT relief denied on substantial-evidence grounds |
Key Cases Cited
- Shkulaku-Purballori v. Mukasey, 514 F.3d 499 (6th Cir. 2007) (changed circumstances and extraordinary delay standards for asylum)
- Abudaya v. Holder, 393 F. App’x 275 (6th Cir. 2010) (jurisdictional bar for asylum review; discretionary/factual determinations are not reviewable)
- Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006) (review of statutory/construction claims; asylum untimeliness context)
- Mikhailevitch v. INS, 146 F.3d 384 (6th Cir. 1998) (persecution requires more than isolated incidents; single beating not per se persecution)
- Khalili v. Holder, 557 F.3d 429 (6th Cir. 2009) (BIA interpretation reviewed with deference under substantial-evidence standard)
- Mu Hua Pan v. Holder, 381 F. App’x 572 (6th Cir. 2010) (protection for forced abortion extends to the woman and spouse; not to applicant here)