Jing Jiang v. Eric Holder, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-2152

JING JIANG, a/k/a Jyung Jyang,

Petitioner,

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted: April 3, 2012 Decided: April 12, 2012

Before GREGORY, DUNCAN, and AGEE, Circuit Judges.

Petition denied in part; dismissed in part by unpublished per
curiam opinion.

Cora J. Chang, New York, New York, for Petitioner. Tony West,
Assistant Attorney General, John S. Hogan, Senior Litigation
Counsel, David H. Wetmore, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Jing Jiang, a native and citizen of the People’s

Republic of China, petitions for review of an order of the Board

of Immigration Appeals (“Board”) dismissing her appeal from the

immigration judge’s order denying her applications for asylum,

withholding from removal and withholding under the Convention

Against Torture (“CAT”). We dismiss in part and deny in part

the petition for review.

The Immigration and Nationality Act (“INA”) authorizes

the Attorney General to confer asylum on any refugee. 8 U.S.C.

§ 1158(a) (2006). The INA defines a refugee as a person

unwilling or unable to return to her native country “because of

persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (2006).

“Persecution involves the infliction or threat of death,

torture, or injury to one’s person or freedom, on account of one

of the enumerated grounds. . . .” Qiao Hua Li v. Gonzales, 405

F.3d 171, 177 (4th Cir. 2005) (internal quotation marks and

citations omitted).

An alien “bear[s] the burden of proving eligibility

for asylum,” Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir.

2006); see 8 C.F.R. § 1208.13(a) (2011), and can establish

refugee status based on past persecution in her native country

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on account of a protected ground. 8 C.F.R. § 1208.13(b)(1)

(2011).

Without regard to past persecution, an alien can

establish a well-founded fear of persecution on a protected

ground. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.

2004). The well-founded fear standard contains both a

subjective and an objective component. The objective element

requires a showing of specific, concrete facts that would lead a

reasonable person in like circumstances to fear persecution.

Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353 (4th Cir.

2006). “The subjective component can be met through the

presentation of candid, credible, and sincere testimony

demonstrating a genuine fear of persecution . . . . [It] must

have some basis in the reality of the circumstances and be

validated with specific, concrete facts . . . and it cannot be

mere irrational apprehension.” Qiao Hua Li, 405 F.3d at 176

(internal quotation marks and citations omitted).

To establish eligibility for withholding of removal,

an alien must show a clear probability that, if she was removed

to her native country, her “life or freedom would be threatened”

on a protected ground. 8 U.S.C. § 1231(b)(3)(A) (2006); see

Camara v. Ashcroft, 378 F.3d 361, 370 (4th Cir. 2004). A “clear

probability” means that it is more likely than not that the

alien would be subject to persecution. INS v. Stevic, 467 U.S.

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407, 429-30 (1984). Unlike asylum, withholding of removal is

mandatory for anyone who establishes that their “life or freedom

would be threatened . . . because of [their] race, religion,

nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1231(b)(3)(A) (2006).

To qualify for protection under the CAT, an alien

bears the burden of proof of showing “it is more likely than not

that he or she would be tortured if removed to the proposed

country of removal.” 8 C.F.R. § 1208.16(c)(2) (2011). To state

a prima facie case for relief under the CAT, an alien must show

that she will be subject to “severe pain or suffering, whether

physical or mental, . . . by or at the instigation of or with

the consent or acquiescence of a public official or other person

acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1)

(2011); see Saintha v. Mukasey, 516 F.3d 243, 246 & n.2 (4th

Cir. 2008).

A determination regarding eligibility for relief from

removal is affirmed if supported by substantial evidence on the

record considered as a whole. INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992). Administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to decide

to the contrary. 8 U.S.C. § 1252(b)(4)(B) (2006). Legal issues

are reviewed de novo, “affording appropriate deference to the

BIA’s interpretation of the INA and any attendant regulations.”

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Li Fang Lin v. Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008).

This court will reverse the Board only if “the evidence . . .

presented was so compelling that no reasonable factfinder could

fail to find the requisite fear of persecution.” Elias-

Zacarias, 502 U.S. at 483-84; see Rusu v. INS, 296 F.3d 316, 325

n.14 (4th Cir. 2002). Furthermore, “[t]he agency decision that

an alien is not eligible for asylum is ‘conclusive unless

manifestly contrary to the law and an abuse of discretion.’”

Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010) (quoting

8 U.S.C. § 1252(b)(4)(D) (2006)).

On appeal to the Board, Jiang claimed that she

established past persecution based on her particular social

group, her kinship ties with her family. The Board noted this

claim was not raised before the immigration judge and that it

does not recognize claims raised for the first time on appeal.

Under 8 U.S.C. § 1252(d)(1) (2006), this court may review a

final order of removal only if the alien “has exhausted all

administrative remedies available to the alien as of right[.]”

Any particular claim that is not properly exhausted is barred

from being reviewed by this court. See Massis v. Mukasey, 549

F.3d 631, 638-39 (4th Cir. 2008) (Petitioner “may not raise an

issue on appeal that he did not previously raise before the IJ

and BIA.”). This prohibition against reviewing unexhausted

claims is jurisdictional. Id.

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Exhaustion serves the purposes of (1) preventing

premature interference with agency proceedings, (2) allowing the

agency to operate efficiently and to correct its own errors, (3)

affording the parties and the courts the benefits of the

agency’s expertise and (4) compiling an adequate record for

judicial review. Weinbereger v. Salfi, 422 U.S. 749, 765

(1975); see also Kurfees v. INS, 275 F.3d 332, 336 (4th Cir.

2001) (the exhaustion requirement “serves the twin purposes of

protecting administrative agency authority and promoting

judicial efficiency.”). Because Jiang did not exhaust all

available remedies, we conclude we are without jurisdiction to

consider this claim. Accordingly, we dismiss in part the

petition for review.

We have reviewed the immigration judge’s finding that

Jiang did not show that she has a well-founded fear of

persecution and conclude that it is supported by substantial

evidence. We further conclude that substantial evidence

supports the finding that Jiang was not eligible for relief

under the CAT.

Accordingly, we dismiss that part of the petition for

review in which Jiang claims that she established a well-founded

fear of persecution based on her membership in a particular

social group, her family. We deny the remaining portion of the

petition for review. We dispense with oral argument because the

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facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

PETITION DENIED IN PART;
DISMISSED IN PART