Summary
The Second Circuit dismissed in part and denied in part Piao's petition for review of the BIA's denial of asylum, withholding of removal, and CAT relief. The court lacked jurisdiction to review the asylum application as untimely. The court held that the agency properly denied withholding of removal based on forced abortion claims where the petitioner failed to provide corroborating evidence that the threatened fines were sufficiently severe to constitute persecution, and that credible testimony alone does not satisfy the burden of proof when corroboration is reasonably available. The court further found no error in the denial of withholding and CAT relief based on religious persecution, as Piao failed to show Chinese authorities were aware or likely to become aware of her religious activities.
Topics
Practice areas
Questions Presented
- Whether the court has jurisdiction to review the agency's pretermission of Piao's asylum application as untimely.
- Whether the agency erred in denying withholding of removal based on the family planning claim (forced abortion).
- Whether the agency erred in denying withholding of removal based on religion.
- Whether the agency erred in denying CAT relief.
Holdings
- The court lacks jurisdiction to review the agency's pretermission of Piao's asylum application as untimely under 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).
- The agency did not err in finding that Piao failed to establish that her abortions were forced so as to constitute past persecution under the INA.
- The agency did not err in finding that Piao failed to establish a clear probability of future persecution on account of religion.
- Piao's failure to establish past persecution or a probability of future persecution was dispositive of both withholding of removal and CAT relief because both forms of relief were based on the same underlying facts.
Key quotations
“An abortion is not ‘forced’ . . . unless the threatened harm for refusal would, if carried out, be sufficiently severe that it amounts to persecution.” (at 3)
“Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.” (at 4)
“To obtain withholding of removal, an applicant must show either a ‘clear probability’ that she will be singled out for persecution or that the country of removal has a pattern or practice of persecuting similarly situated individuals.” (at 6)
Factual background
Piao claimed that Chinese family planning officials forced her to terminate two pregnancies in the 1980s by threat of onerous fines. She also claimed that she would face persecution in China on account of her Christian faith. The agency found that Piao failed to adequately corroborate the forced abortion claim and failed to show a clear probability of future persecution based on religion.
Procedural history
Petitioner Mingji Piao, a native and citizen of the People’s Republic of China, seeks review of a March 8, 2018 decision of the BIA affirming a May 18, 2017 decision of an Immigration Judge (IJ) denying Piao asylum, withholding of removal, and relief under the Convention Against Torture (CAT).