20-2216 Xie v. Garland BIA Bither, IJ A206 582 110 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of January, two thousand twenty- three.

PRESENT: DEBRA ANN LIVINGSTON, Chief Judge, JOHN M. WALKER, JR., ALISON J. NATHAN, Circuit Judges. _____________________________________

CHUN XIE, Petitioner,

v. 20-2216 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Jim Li, Esq., Flushing, NY.

FOR RESPONDENT: Brian M. Boynton, Acting Assistant Attorney General; Bernard A. Joseph, Senior Litigation Counsel; Enitan O. Otunla, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Chun Xie, a native and citizen of the People’s

Republic of China, seeks review of a June 25, 2020, decision

of the BIA affirming an April 16, 2018, decision of an

Immigration Judge (“IJ”) denying asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). In re Chun Xie, No. A206-582-110 (B.I.A. June 25,

2020), aff’g No. A206-582-110 (Immig. Ct. N.Y. City Apr. 16,

2018). We assume the parties’ familiarity with the

underlying facts and procedural history.

We have reviewed the IJ’s decision as modified by the

BIA, i.e., minus the adverse credibility determination that

the BIA did not reach. See Yang v. U.S. Dep’t of Just.,

(2d Cir. 2005). The applicable standards of

review are well established. See

(b)(4)(B)

(“[T]he administrative findings of fact are conclusive unless

2 any reasonable adjudicator would be compelled to conclude to

the contrary[.]”); Weng v. Holder,

(2d Cir.

2009) (reviewing factual findings for substantial evidence

and questions of law de novo).

To establish eligibility for asylum and withholding of

removal, an applicant must establish past persecution or a

well-founded fear or likelihood of future persecution on

account of “race, religion, nationality, membership in a

particular social group, or political opinion.”

(b)(1)(B)(i), 1231(b)(3)(A);

(b),

1208.16(b). In order to establish persecution on account of

political opinion, “[t]he applicat[ion] must . . . show,

through direct or circumstantial evidence, that the

persecutor’s motive to persecute arises from the applicant’s

political belief.” Zhang v. Gonzales,

(2d

Cir. 2005). “[O]pposition to endemic corruption or

extortion, no less than opposition to other government

practices or policies, may have a political dimension when it

transcends mere self-protection and represents a challenge to

the legitimacy or authority of the ruling regime.”

at

547–48.

3 The agency did not err in concluding that Xie failed to

establish that village cadres harmed him on account of an

anti-corruption political opinion because he testified that

they beat him after he engaged in a verbal argument with the

village head over a personal land dispute. See

And he

did not provide any testimony from which to infer that

government officials believed his complaints were for any

reason other than to protect his own interest. See

Accordingly, the agency did not err in denying asylum and

withholding of removal for failure to show a nexus to a

protected ground as required for asylum and withholding of

removal. See

(b)(1)(B)(i), 1231(b)(3)(A).

The agency also did not err in denying CAT relief.

Unlike asylum and withholding, CAT relief does not require a

nexus to a protected ground. See

(c),

1208.17. To obtain CAT relief, an applicant must show that

it is “more likely than not” that he will be tortured.

(c)(2), 1208.17(a). To show that torture

is “more likely than not,” an applicant “must establish that

there is greater than a fifty percent chance . . . that he

will be tortured upon return to his . . . country of origin.”

Wang v. Ashcroft,

, 144 n.20 (2d Cir. 2003).

4 First, contrary to Xie’s contention, the IJ denied CAT

relief on both credibility and burden grounds and thus the

BIA did not err in affirming the denial of CAT on burden

grounds alone. Second, Xie did not satisfy his burden of

proof because he did not allege that he faces torture,

testifying only that, if he returns to his village, he will

be unable to retake possession of the government-owned

farmland that he previously occupied. See

(c)(2), 1208.17(a); see also Wang,

n.20; cf. Huang v. U.S. INS,

(2d Cir. 2005)

(“In the absence of solid support in the record . . . [an

applicant’s] fear is speculative at best”).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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