In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2130
MINGHAI TIAN,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A088‐608‐599
____________________
ARGUED JANUARY 6, 2014 — DECIDED MARCH 13, 2014
____________________
Before EASTERBROOK, WILLIAMS, and TINDER, Circuit
Judges.
TINDER, Circuit Judge. Minghai Tian, a 48‐year old Chi‐
nese citizen who has been in the United States since 2001,
petitions for the review of the decisions of an immigration
judge and the Board of Immigration Appeals (“BIA” or
“Board”) denying him asylum, withholding of removal, and
relief under the United Nations Convention Against Torture
2 No. 13‐2130
(“CAT”). Because we lack jurisdiction to review the BIA’s
conclusion that Tian’s asylum application was time‐barred,
we dismiss that claim. Because Tian did not exhaust his ad‐
ministrative remedies with regard to his CAT claim, we deny
that claim. And because Tian fails to demonstrate that he
met his burden of proof for establishing his eligibility for
withholding of removal, we also deny Tian’s petition for re‐
view with regard to his withholding of removal claim.
I. Background
Tian is a native and citizen of the People’s Republic of
China. He was admitted to the United States in 2001 on a
non‐immigrant visa, as a participant in an international culi‐
nary exchange program. The visa authorized him to stay in
the United States until June 1, 2001, but Tian remained in the
United States beyond that date. He came to the attention of
the Department of Homeland Security (“DHS”) on October
4, 2007, after he was arrested for questioning during an in‐
vestigation of human trafficking. The arrest resulted in no
charges, but Tian was turned over to DHS and placed in re‐
moval hearings. On March 25, 2009, while the removal hear‐
ings were pending, Tian pled guilty in Nevada to drawing
and passing a check without sufficient funds with intent to
defraud. He was ordered to pay over $100,000 in restitution,
though his sentence was suspended, and he was placed on
probation for an indeterminate period not to exceed five
years.
On October 16, 2008, Tian filed applications for asylum,
withholding of removal, and CAT protection. In the state‐
ment attached to his applications, he asserted the following
narrative: In 1989, Tian took part in demonstrations in Tian‐
jin, China. Because the Tianjin city officials did not want
No. 13‐2130 3
students demonstrating in Tianjin, Tian and his fellow de‐
monstrators were offered free transportation to demonstra‐
tions in Beijing, which they accepted. Once in Beijing, Tian
and Zhao Xuejin, a member of Beijing University’s student
governing body, delivered food and water to the protesting
students. This caused Tian to be detained by the police on
June 1, 1989, and held for ten days. During his ten‐day de‐
tention, Tian was repeatedly assaulted by police officers, and
even undressed and tied to a tree for an entire day. After he
was released, the Beijing officials reported his information to
Tianjin officials, and Tian had to go to the local Public Secu‐
rity Bureau to “report” himself regularly. Tian further assert‐
ed that he later went to Beijing University to see Zhao Xue‐
jin, but was told that Zhao had gone to England to seek asy‐
lum. When Tian later “got in touch with [Zhao Xuejin]
through some channels,” Zhao told Tian that Western na‐
tions respected human rights and freedom of speech.
Tian asserted that he was demoted from the position of
the manager of a hotel to that of a kitchen helper, and that
his wife divorced him, both directly as the result of the per‐
secution he suffered for his participation in the pro‐
democracy movement. Tian said, of his trip to the United
States in 2001, that the United States was “a country [he] had
looked forward to seeing for over ten years.” He claimed
that he had failed to timely apply for asylum in the United
States because of “language barriers” and his “ignorance of
U.S. laws.”
At the hearing before the immigration judge, Tian stated
that he did not have any documentation of his participation
in the demonstration or his detention, or of subsequent med‐
ical treatment for the injuries he sustained during the deten‐
4 No. 13‐2130
tion, because he was not allowed to seek medical care for
those injuries. He indicated that his siblings and parents
knew he had been detained in Beijing. He testified that he
remained in contact with other people who went to the Bei‐
jing demonstration, but that he is not currently in touch with
those people. He also testified that he had no further prob‐
lems with Chinese authorities before he left China in 2001.
When asked why he submitted no documents to support his
application, Tian stated that the city of Tianjin had under‐
gone a great deal of change since he came to the United
States, and that many people had changed their cell phone
numbers. Because Tian, not his family, was the one who had
contact with his fellow demonstrators, he claimed he was
unable to locate those people now.
In the hearing, Tian also claimed that he was given a
document to take to his employer, which seems to have re‐
sulted in his demotion to kitchen helper. But he admitted
that he advanced to the position of cook, then head chef, pri‐
or to coming to the United States. He further testified that he
does not have any documentation of his demotion, or attest‐
ing to his employment at the restaurant. Tian testified he en‐
tered the United States with a valid Chinese passport, and
that he traveled here with a visa for a culinary exchange
program. His stated reasons for not applying for asylum
within one year of his arrival were because he “did not know
much about American laws” and was “ignorant.”
With regard to his arrest in 2007, Tian stated that he was
pulled over for speeding, and that he was turned over to
DHS, not prosecuted for any trafficking crime. With regard
to the Nevada conviction for drawing and passing a check
without sufficient funds, Tian testified that he gave a friend
No. 13‐2130 5
a blank check because the friend needed to pay for utilities.
He testified that he pled guilty on the advice of his attorney
and that he pays $300 restitution per month.
The immigration judge issued an oral decision finding
Tian removable, and denying his applications for asylum,
withholding of removal, and CAT protection. The immigra‐
tion judge denied the application for asylum on statutory
grounds. He found that Tian had failed to show any appli‐
cable exceptions to the one‐year asylum application dead‐
line, as Tian did not allege materially changed circumstances
in China, and as being too busy and not speaking sufficient
English did not constitute extraordinary circumstances that
would allow for an untimely application. Furthermore, the
immigration judge found that the Nevada conviction was an
aggravated felony that rendered Tian statutorily ineligible
for asylum.
The application for withholding of removal was denied
because the immigration judge found Tian not credible. The
immigration judge found that Tian’s story was implausible,
primarily because of the lack of corroborating evidence and
because Tian’s life after the demonstrations and career trajec‐
tory suggested that he was a willing and successful partici‐
pant in life in China, not an individual fleeing persecution.
In support of this proposition, the immigration judge noted
that Chinese authorities granted Tian the credentials to leave
his country to visit the United States. With respect to the re‐
quest for CAT protection, the immigration judge noted that
the fact that Tian left China with a valid passport—and thus
the implicit permission of the Chinese government—
suggested he was not subject to torture in China. According‐
ly, the immigration judge ordered Tian removed.
6 No. 13‐2130
Tian’s appeal brief to the BIA summarily referenced
“UNCAT relief” in the Notice of Appeal section, but did not
substantively argue Tian’s eligibility for CAT protection. The
Board thus found that the CAT issue was waived. The Board
affirmed the immigration judge’s denial of Tian’s untimely
asylum application and affirmed the immigration judge’s
denial of withholding of removal relief and adverse credibil‐
ity determination. Tian filed a timely petition for review.
II. Discussion
Of the three issues Tian raises in his petition, we lack ju‐
risdiction to review the asylum claim, and we dismiss the
petition as it pertains to that claim. We deny the petition for
review of the CAT claim, as the issue was not properly pre‐
served for our review. We also deny the petition for review
of the withholding of removal claim.
A. Application for Asylum
An alien must file an application for asylum within one
year of arriving in the United States. 8 U.S.C. § 1158(a)(2)(B).
The burden is on the alien to establish eligibility for asylum,
including the element that he timely filed the application. Id.
Despite this requirement, an alien’s asylum application may
be considered “if he demonstrates … either the existence of
changed circumstances which may materially affect his eli‐
gibility for asylum or extraordinary circumstances relating
to the delay in filing the application within the prescribed
one‐year period.” Bitsin v. Holder, 719 F.3d 619, 625 (7th Cir.
2013) (quoting language from 8 U.S.C. § 1158(a)(2)(D)) (in‐
ternal quotation marks omitted). However, courts may not
“review a determination regarding the timeliness of an al‐
ien’s application for asylum or the existence of changed or
No. 13‐2130 7
extraordinary circumstances to excuse his late filing,” unless
for “constitutional claims or questions of law related to the
timely filing of an asylum application.” Id. Tian does not ask
us to adjudicate constitutional claims or questions of law re‐
lating to the timeliness of his asylum application. Instead, he
asks us to review the Board’s factual determination that
there existed no changed or extraordinary circumstances to
excuse his late filing. “We lack jurisdiction to review the
Board’s determination that [Tian] failed to meet any of the
exceptions to the rules governing the time within which an
asylum application must be filed, because that conclusion
did not turn on any question of law or constitutional claim.”
Almutairi v. Holder, 722 F.3d 966, 1002 (7th Cir. 2013).
Accordingly, we dismiss Tian’s petition to review the
Board’s decision that his asylum application is untimely, for
want of jurisdiction.
B. CAT Protection Claim
“A failure to exhaust usually forecloses a petitioner from
raising an issue in federal court that was not raised before
the immigration tribunal.” Young Dong Kim v. Holder, 737
F.3d 1181, 1187 (7th Cir. 2013) (quoting Arobelidze v. Holder,
653 F.3d 513, 517 (7th Cir. 2011)) (internal quotation marks
omitted). Exhausting all administrative remedies available to
the alien “includes the obligation first to present to the Board
any arguments that lie within its power to address.” FH‐T v.
Holder, 723 F.3d 833, 841 (7th Cir. 2013). We deem exhaustion
necessary for appellate review because of the importance of
“provid[ing] the Board an opportunity to apply its special‐
ized knowledge and experience to the matter,” which “pro‐
vides us with reasoning to review.” FH‐T, 723 F.3d at 841
(quoting Arobelidze, 653 F.3d at 517).
8 No. 13‐2130
We agree with the Respondent that Tian did not raise to
the Board any substantive arguments for why he should re‐
ceive CAT relief, and that he thus failed to exhaust the ad‐
ministrative remedies available to him with regard to this
claim. Tian merely gestured to the existence of a potential
CAT claim in an introductory section of his BIA brief, and
made no arguments about the immigration judge’s denial of
his CAT claim. The sentence stating he had applied for “re‐
lief under the UNCAT” did not provide the Board with “an
opportunity to apply its specialized knowledge and experi‐
ence to the matter.” FH‐T, 723 F.3d at 841. As such, we hold
that Tian failed to meet his burden of properly presenting
his claim to the Board. See, e.g., El‐Gazawy v. Holder, 690 F.3d
852, 858–59 (7th Cir. 2012) (holding that an alien waived an
issue presented to the Board in a form “simply too thin for
the BIA to recognize it in the form the petitioner now urges
us to consider”). We thus deny the CAT claim.
C. Withholding of Removal Claim
1. Standard of Review
“Where, as here, the BIAʹs decision adopts and affirms
the IJʹs conclusion as well as provides its own analysis, we
review both decisions.” Bathula v. Holder, 723 F.3d 889, 897
(7th Cir. 2013) (internal quotation marks and citations omit‐
ted). Our review of factual findings is for substantial evi‐
dence: “the agency’s determination [to deny Tian withhold‐
ing of removal] will stand if it is supported by reasonable,
substantial, and probative evidence on the record considered
as a whole.” Id. at 898 (quoting Vahora v. Holder, 626 F.3d 907,
912 (7th Cir. 2010)). Reversal is appropriate “only if the evi‐
dence presented by [Tian] was such that a reasonable fact‐
finder would have to conclude that the requisite fear of per‐
No. 13‐2130 9
secution existed.” Jabr v. Holder, 711 F.3d 835, 838 (7th Cir.
2013) (quoting INS v. Elias‐Zacarias, 502 U.S. 478, 481 (1992)).
Credibility determinations in asylum cases are also subject to
the substantial evidence standard of review. Munoz‐Avila v.
Holder, 716 F.3d 976, 979 (7th Cir. 2013).
2. Credibility of Tian’s Claim of Persecution
In order to establish eligibility for withholding of remov‐
al, the alien bears the burden of demonstrating that his “life
or freedom would be threatened … because of [his] race, re‐
ligion, nationality, membership in a particular social group,
or political opinion” in the country to which he will be re‐
moved. 8 U.S.C. § 1231(b)(3)(A); Firmansjah v. Gonzales, 424
F.3d 598, 605 (7th Cir. 2005) (describing the alien’s burden to
establish a “clear probability” of persecution, or that it is
“more likely than not” that he will be subject to persecution
if returned to his native country). Persecution is defined to
include “detention, arrest, interrogation, prosecution, im‐
prisonment, illegal searches, confiscation of property, sur‐
veillance, beatings, torture, behavior that threatens the same,
and non‐life‐threatening behavior such as torture and eco‐
nomic deprivation if the resulting conditions are sufficiently
severe.” Yi Xian Chen v. Holder, 705 F.3d 624, 629 (7th Cir.
2013) (citations and internal quotation marks omitted). Tian
alleges political persecution based on his involvement in
supplying food and water to student demonstrators in 1989
in Beijing. His testimony alone may suffice to prove that he
is a refugee if the immigration judge finds it credible, but “if
the [immigration judge] finds the testimony incredible, cor‐
roborating evidence is required.” Rama v. Holder, 607 F.3d
461, 465 (7th Cir. 2010).
10 No. 13‐2130
We hold that Tian fails to meet the burden of establishing
his eligibility for withholding of removal: he does not pre‐
sent us with a plausible account of his past persecution or
feared future persecution in China, and he has failed to pre‐
sent corroborating evidence to overcome the implausibility
of his testimony.
a. Plausibility of Tian’s testimony
First, we address the government’s argument that Tian
waived review of the Board’s determination finding implau‐
sible his claim that he was detained and beaten in China for
participating in the 1989 demonstration. The government
argues that Tian summarily claims that he truthfully testified
about his past persecution, but does not otherwise contest
the Board’s finding of implausibility. We require “an argu‐
ment consisting of more than a generalized assertion of er‐
ror” to hold that an issue has not been waived in the brief‐
ing. Haxhiu v. Mukasey, 519 F.3d 685, 691 (7th Cir. 2008)
(quoting Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.
2001)).
Tian does not meet this burden in asserting the plausibil‐
ity of his past persecution in China, as he articulates no co‐
gent argument to challenge the Board’s finding of implausi‐
bility. “The failure to adequately develop and support [this
argument] results in waiver.” Long‐Gang Lin v. Holder, 630
F.3d 536, 543 (7th Cir. 2010). But even if he had not waived
this challenge, we would agree with the agency’s determina‐
tion on the merits.
The immigration judge and the Board reasonably deter‐
mined that Tian’s claim of persecution was implausible in
view of the totality of his claim. We review the immigration
No. 13‐2130 11
judge and the Board under the deferential substantial evi‐
dence standard, meaning that we may only reverse their fac‐
tual findings if the facts compel an opposite conclusion. Ba‐
logun v. Ashcroft, 374 F.3d 492, 507 (7th Cir. 2004). The record
shows that Tian remained in China for more than ten years
after his alleged persecution, and continued working at the
same government‐owned restaurant where he had worked
before the demonstration without further persecution from
Chinese authorities. During his time there, he was eventually
promoted to head chef. Furthermore, the government even
permitted him to leave China to participate in a culinary ex‐
change program. Upon arriving in the United States, Tian
did not apply for asylum for seven years, and it appears the
application was inspired by his being placed in removal pro‐
ceedings in the United States. These facts, combined with the
absence of specific details about his mistreatment in the past,
reasonably lead to the conclusion that Tian was not fleeing
persecution in China when he arrived in the United States in
2001. Nor does Tian present us with any information to sus‐
pect there will be persecution in Tian’s future, should he re‐
turn to China. The evidence certainly does not compel the
conclusion that Tian will be persecuted should he return
there.
b. Lack of corroborating evidence
Tian is ineligible for withholding of removal because
substantial evidence supports the agency’s determination
that he did not provide sufficient corroborating evidence to
overcome his incredible testimony, despite the availability of
such evidence. As Tian is subject to the REAL ID Act, an
immigration judge may require corroborating evidence,
which must be presented unless it “cannot [be] reasonably
12 No. 13‐2130
obtain[ed].” 8 U.S.C. §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C). “Un‐
less [Tian] can show that corroborating evidence was rea‐
sonably unavailable, [his] failure to produce it was fatal to
[his] claims.” Raghunathan v. Holder, 604 F.3d 371, 379 (7th
Cir. 2010). We review the Board’s determination that corrob‐
orating evidence was available under the substantial evi‐
dence standard, meaning that we cannot reverse a determi‐
nation made by the Board unless “a reasonable trier of fact is
compelled to conclude that such corroborating evidence is
unavailable.” Id. (quoting Pub. L. No. 109‐13, § 101, 119 Stat.
231, 304 (2005)).
Tian submitted no corroborating evidence whatsoever,
despite having several sources from which he could have
obtained such information. He failed to submit evidence
from his family, who knew about his detention and with
whom he was in touch; fellow demonstrators from the 1989
demonstration, including Zhao Xuejin, apparently now liv‐
ing in England; or the hotel where he worked until 2001,
when he left China. Tian’s failure to obtain corroborating ev‐
idence and failure to offer legitimate reasons why this evi‐
dence was not available are fatal to his claims.
Because Tian does not present a credible account of his
past or feared future persecution in China, and because he
fails to submit corroborating evidence to overcome his in‐
credible testimony, we deny his petition for review with re‐
gard to his withholding of removal claim.
III. Conclusion
Tian’s petition for review is DISMISSED with respect to the
claim for asylum and DENIED with respect to the claims for
CAT relief and withholding of removal.