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Tian v. Holder

United States Court of Appeals, Seventh Circuit

March 13, 2014

MINGHAI TIAN, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General of the United States, Respondent

Argued January 6, 2014.

Petition for Review of an Order of the Board of Immigration Appeals. No. A088-608-599.

For MINGHAI TIAN, Petitioner: Pengtian Ma, Attorney, Chicago, IL.

For ERIC H. HOLDER, JR., Attorney General of the United States, Respondent: David V. Bernal, Attorney, Yedidya Cohen, Attorney, OIL, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, Washington, DC.

Before EASTERBROOK, WILLIAMS, and TINDER, Circuit Judges.

OPINION

Page 823

Tinder, Circuit Judge.

Minghai Tian, a 48-year old Chinese 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 (" 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 administrative 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 review 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 culinary 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 investigation of human trafficking. The arrest resulted in no charges, but Tian was turned over to DHS and placed in removal hearings. On March 25, 2009, while the removal hearings were pending, Tian pled

Page 824

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 statement attached to his applications, he asserted the following narrative: In 1989, Tian took part in demonstrations in Tianjin, China. Because the Tianjin city officials did not want students demonstrating in Tianjin, Tian and his fellow demonstrators were offered free transportation to demonstrations 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 detention, 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 Security Bureau to " report" himself regularly. Tian further asserted that he later went to Beijing University to see Zhao Xuejin, but was told that Zhao had gone to England to seek asylum. When Tian later " got in touch with [Zhao Xuejin] through some channels," Zhao told Tian that Western nations 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 persecution he suffered for his participation in the prodemocracy 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 medical treatment for the injuries he sustained during the detention, 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 Beijing demonstration, but that he is not currently in touch with those people. He also testified that he had no further problems 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 undergone a great deal of change since he came to the United ...


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