Tian v. Holder
Opinion of the Court
ORDER
Yuan Tian, a citizen of China who fears harm from her father for coming out as a lesbian, challenges the denial of her motion for reconsideration with respect to her applications for asylum and protection under the Convention Against Torture (CAT). We dismiss the petition for review in part and deny the petition in part.
The immigration judge denied Tian’s requests for relief. The IJ rejected the asylum application as untimely, stating that “[t]he Court cannot authenticate the letter and does not find that this constitutes changed circumstances” that would excuse Tian from filing within the one-year deadline. See 8 C.F.R. § 1208.4(a)(4)(i)(B). With respect to withholding of removal, the IJ found her testimony unpersuasive and concluded that she failed to provide corroboration to show that she is a lesbian, such as a letter from her former girlfriend or photographs of their relationship. The IJ likewise denied her CAT claim based on a lack of evidence to show that she would be harmed in China. The BIA upheld the denial and supplemented the IJ’s order with the observation that Tian could not explain how her father obtained her address (she denied ever giving it to him) and had testified inconsistently about whether other documents were included with the letter. The BIA also concluded that she had not shown that she would be tortured by or at the acquiescence of Chinese officials. See 8 C.F.R. § 1208.18(a)(1). Tian did not petition for review of that decision.
A month'later Tian moved the BIA to reconsider, arguing that it had failed to consider the totality of the circumstances in upholding the IJ’s denial. In particular, she asserted that she had testified consistently when she denied knowing how her father obtained her address or not recalling if her father’s letter had included other documents. She also argued that her testimony alone should have been sufficient to establish her sexual orientation. Regarding her CAT claim, she maintained that her testimony that police would help her father find her showed that she would be tortured with the acquiescence of public officials. Tian did not make any arguments about withholding of removal in her motion to reconsider.
The BIA denied the motion to reconsider for essentially the same reasons given in its earlier denial. First, it concluded that Tian had not demonstrated the “reliability and authenticity” of her father’s letter and thus could not show changed circumstances excusing her untimely application. Second, concerning the CAT claim, the BIA reaffirmed its earlier conclusion that Tian failed to show that she would be tortured with the acquiescence of public officials.
In her petition for review, Tian continues to press the merits of her underlying
To the extent that Tian challenges the denial of her motion to reconsider, we understand her to argue that the BIA did not consider the totality of the circumstances in finding her father’s letter unreliable. See Kiorkis v. Holder, 634 F.3d 924, 930 n. 2 (7th Cir. 2011) (argument that BIA “applied the incorrect legal standard” is a question of law). But she does not identify any overlooked evidence; she instead focuses on testimony considered by the BIA (whether she received documents with the letter and how her father obtained her address). The BIA applied the correct legal standard by relying on inconsistencies and a lack of corroboration to conclude that Tian had not shown changed circumstances. See 8 U.S.C. § 1158(b)(1)(B)(iii); Krishnapillai v. Holder, 563 F.3d 606, 619 (7th Cir. 2009); Mitondo v. Mukasey, 523 F.3d 784, 787-89 (7th Cir. 2008).
Concerning her CAT claim, Tian appears to contend, again, that the BIA failed to consider the totality of her evidence showing that her life would be threatened in China. In particular, she points to her testimony that the police would fail to protect her from her father as sufficient to show that she would be tortured with the acquiescence of public officials. But the BIA concluded that Tian had not shown a genuine threat from her father when it rejected the reliability and authenticity of the letter, so it provided a rational explanation for determining that Tian had not shown she would be tortured in China. See Victor v. Holder, 616 F.3d 705, 708-09 (7th Cir. 2010); Mungongo v. Gonzales, 479 F.3d 531, 534-35 (7th Cir. 2007).
We lack jurisdiction to review Tian’s argument about -withholding of removal, so that claim is DISMISSED. The remainder of her petition for review is DENIED.
Reference
- Full Case Name
- Yuan TIAN v. Eric H. HOLDER, Jr., Attorney General of the United States
- Cited By
- 1 case
- Status
- Published