08-5939-ag
Thein v. Holder
BIA
Ferris, IJ
A098 975 489
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 1 st day of February, two thousand ten.
5
6 PRESENT:
7 REENA RAGGI,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _________________________________________
12
13 KYAW MYO THEIN,
14 Petitioner,
15
16 v. 08-5939-ag
17 NAC
18 ERIC H. HOLDER, JR., 1 UNITED STATES
19 ATTORNEY GENERAL, UNITED STATES
20 CITIZENSHIP AND IMMIGRATION SERVICES,
21 Respondents.
22 _________________________________________
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1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric. H. Holder, Jr. is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Patrick Wang, New York, New York.
2
3 FOR RESPONDENTS: Michael F. Hertz, Acting Assistant
4 Attorney General; Anthony C. Payne,
5 Senior Litigation Counsel; Tiffany
6 Walters Kleinert, Trial Attorney,
7 Office of Immigration Litigation,
8 United States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED that the petition for review
14 is GRANTED in part and DISMISSED in part.
15 Petitioner Kyaw Myo Thein, a native and citizen of
16 Burma, 2 seeks review of the November 7, 2008 order of the
17 BIA, affirming the February 21, 2007 decision of Immigration
18 Judge (“IJ”) Noel Ferris, which pretermitted his application
19 for asylum and denied his application for withholding of
20 removal and relief under the Convention Against Torture
21 (“CAT”). In re Kyaw Myo Thein, No. A098 975 489 (B.I.A.
2
In 1989, the military regime in control of Burma
declared that the country would henceforth be known as
“Myanmar.” However, both Thein and the agency refer to the
country as “Burma,” and, according to the CIA’s World
Factbook, the name “Myanmar” “was not approved by any
sitting legislature in Burma, and the U.S. Government did
not adopt the name.” CIA, The World Factbook - Burma,
https://www.cia.gov/library/publications/the-world-
factbook/geos/bm.html. Accordingly, we refer to Thein’s
native country as “Burma.”
2
1 Nov. 7, 2008), aff’g A098 975 489 (Immig. Ct. N.Y. City Feb.
2 21, 2007). We assume the parties’ familiarity with the
3 underlying facts and procedural history of the case.
4 When the BIA adopts the decision of the IJ and
5 supplements the IJ’s decision, this Court reviews the
6 decision of the IJ as supplemented by the BIA. Yan Chen v.
7 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the
8 agency’s factual findings under the substantial evidence
9 standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S.
10 Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).
11 Questions of law and the application of law to undisputed
12 fact are reviewed de novo. Bah v. Mukasey, 529 F.3d 99, 110
13 (2d Cir. 2008).
14 I. Asylum: One-Year Bar to Jurisdiction
15 Title 8, Section 1158(a)(3) of the United States Code
16 provides that no court shall have jurisdiction to review the
17 agency’s finding that an asylum application was untimely
18 under 8 U.S.C. § 1158(a)(2)(B), or the Attorney General’s
19 finding of neither changed nor extraordinary circumstances
20 excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D).
21 Notwithstanding that provision, however, we retain
22 jurisdiction to review constitutional claims and questions
3
1 of law. See 8 U.S.C. § 1252(a)(2)(D).
2 Here, Thein argues that he filed his asylum application
3 within a reasonable period after his changed circumstances.
4 Because that argument essentially challenges the agency’s
5 exercise of discretion, it presents neither a constitutional
6 claim nor a question of law. See Xiao Ji Chen v. U.S. Dep’t
7 of Justice, 471 F.3d 315, 328-29 (2d Cir. 2006).
8 Accordingly, we dismiss the petition for review to the
9 extent Thein challenges the pretermission of his untimely
10 asylum application. See 8 U.S.C. § 1158(a)(3).
11 II. Withholding of Removal
12 In its decision, the BIA concluded that the IJ had not
13 made an explicit credibility determination and stated that
14 it would “presume that [Thein] is credible.” Despite that
15 statement, however, the BIA plainly disbelieved aspects of
16 Thein’s claim. For example, as the IJ had done, the BIA
17 called into question Thein’s claim that he feared future
18 persecution on account of his recent dissemination of anti-
19 government materials because he omitted that claim from his
20 written application. Citing two of this Court’s decisions
21 concerning adverse credibility determinations, the BIA
22 called the omission “significant.” Similarly, the BIA
4
1 devoted a paragraph of its decision to the IJ’s findings
2 concerning the absence of corroborating evidence --
3 specifically, the absence of a letter from Thein’s wife.
4 Yet this portion of the IJ’s decision also concerned Thein’s
5 credibility. Moreover, the BIA stated that Thein had
6 “admitted to leaving [Burma] because he could make more
7 money working in the U.S.” Again, a finding that Thein came
8 to the United States to make money as opposed to fleeing
9 persecution calls into question the subjective nature of
10 Thein’s claim —- whether he actually fears persecution as
11 opposed to whether his fear is objectively reasonable even
12 if subjectively held. Viewing the BIA’s decision as a
13 whole, it appears to have purported to assume Thein’s
14 credibility on one hand, while calling his credibility into
15 question on the other. While the record may reveal reasons
16 to question Thein’s credibility, having found that the IJ
17 did not make a sufficiently explicit adverse credibility
18 determination, see 8 U.S.C. § 1158(b)(1)(B)(iii), the BIA
19 was not free to make its own. See Fen Yong Chen v. BCIS,
20 470 F.3d 509, 514-15 (2d Cir. 2006).
21 The inconsistency between the BIA’s statement that it
22 would presume the credibility of Thein’s testimony and its
5
1 actual analysis of the record is apparent throughout the
2 agency’s assessment whether Thein satisfied his burden of
3 proof. The BIA relied in part, for example, on the
4 conclusion that Thein’s family remained unharmed in Burma in
5 determining that he had not made out a withholding claim.
6 Thein testified, however, that he had disseminated anti-
7 government materials in Burma. If this testimony is
8 presumed to be credible, a burden of proof analysis relying
9 on the fact that his family members had not been harmed
10 would require some assessment whether Thein’s family members
11 are similarly situated to him in this regard. See Tian-Yong
12 Chen v. U.S. INS, 359 F.3d 121, 127-28 (2d Cir. 2004);
13 Matter of A-E-M-, 21 I. & N. Dec. 1157, 1170-71 (BIA 1998).
14 The BIA failed to perform such an assessment or to
15 acknowledge Thein’s testimony that his wife had informed him
16 that the authorities had twice searched her home, telling
17 her that he was wanted for distributing subversive
18 literature and stating that if he returned, he would be
19 arrested.
20 As we have stated, our “review is frustrated when it is
21 unclear whether the agency has made an adverse credibility
22 determination.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
6
1 2008). Here, because the BIA’s decision is sufficiently
2 ambiguous on this point as to frustrate meaningful review,
3 remand is required on this basis alone. We thus need not
4 consider Thein’s argument that the IJ’s conduct affected the
5 outcome of his hearing. Further, because Thein does not
6 challenge the denial of his application for relief under the
7 CAT in his brief, the CAT claim is waived. See Yueqing
8 Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005).
9 For the foregoing reasons, the petition for review is
10 GRANTED in part and DISMISSED in part. The case is REMANDED
11 for further proceedings consistent with this order. As we
12 have completed our review, any stay of removal that the
13 Court previously granted in this petition is VACATED, and
14 any pending motion for a stay of removal in this petition is
15 DISMISSED as moot. Any pending request for oral argument in
16 this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2) and Second Circuit Local Rule
18 34(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
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