Argued June 4, 2014
On Petition for Review of an Order of the Board of Immigration Appeals. No. A079 013 934.
For Aimin Yang, Petitioner: Dehai Zhang, Attorney, Flushing, NY.
For ERIC H. HOLDER, JR., Attorney General of the United States, Respondent: Brianne Whelan Cohen, Attorney, Richard Zanfardino, Attorney, OIL, Attorney, Department of Justice, Civil Division, Immigration Litigation, Washington, DC.
Before WOOD, Chief Judge, and CUDAHY and ROVNER, Circuit Judges.
Wood, Chief Judge.
Aimin Yang, the petitioner in this case, is in a difficult position. After Feng Li, who is a U.S. citizen, married Yang, Li submitted a Petition for Alien Relative form (Form I-130) to the U.S. Citizenship and Immigration Services (USCIS) on Yang's behalf. If approved, this form permits the alien relative to file a Form I-485 for adjustment of status to that of a lawful permanent resident; he or she may do so, however, only once a visa number becomes available. USCIS sent Li a notice of intent to deny, not because there was anything wrong with the marriage (which was Yang's third), but because it believed that Yang's second marriage had been a sham. Yang and Li submitted materials to rebut this allegation, but USCIS lost them and then denied the I-130 petition for lack of support. Li appealed that decision to the Board of Immigration Appeals (Board). On a separate track, Yang sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT). He was unsuccessful. He has now brought before us a petition for review of the Board's decision denying all relief. Although we are satisfied that the Board did not abuse its discretion in denying Yang's request for asylum and associated relief, the same cannot be said for its decision to uphold the IJ's denial of a continuance pending adjudication of Yang's I-130; we grant the petition for review only on that basis.
Yang is a native and citizen of China who entered the United States on April 9, 1998, as a tourist. On October 6, 2000, he married a U.S. citizen, Deirdre Prestin. Prestin filed an I-130 visa petition and application for adjustment of status on Yang's behalf on November 16, 2000, but in the wake of marital problems, she withdrew her petition on January 10, 2003. In August of 2003, Yang's application for adjustment of status was denied after an investigation led USCIS to conclude that his marriage to Prestin was for immigration purposes only and thus fraudulent. In November 2007, he and Prestin were divorced.
In August 2003, the Department of Homeland Security (DHS) initiated removal proceedings against Yang. He conceded removability, but shortly after his divorce from Prestin he filed an application for asylum and associated relief based on his practice of Falun Gong. He asserted that he began practicing Falun Gong in China in 1997 after doctors were unable to cure his pneumonia. Two months of Falun Gong exercises, he reported, restored his health and persuaded him to become a more serious practitioner. Matters took a turn for the worse, however, when his work supervisors discovered his practice of Falun Gong and told him that he would be fired if he did not stop. He did not heed their warnings. Although Falun Gong was not officially banned in China until July
1999, in March 1998 the police arrested Yang and placed him in a cell overnight. During that encounter, they told him that he should stop practicing Falun Gong and slapped him twice on the face, causing his gums to bleed. These encounters prompted Yang's first wife to divorce him, and not long afterward he came to the United States.
In this country, Yang continued practicing Falun Gong. Though he generally did so alone, he attended some group meetings and a number of protests in New York outside the Chinese consulate, where he was photographed. Yang testified that his father (still in China) was visited by Chinese officials around January 2012; the officials questioned his father about Yang's whereabouts. They also asked why Yang had not yet returned from the United States and whether Yang had participated in any anti-government activities. Upon learning of this conversation, Yang became afraid that Chinese officials were aware of his practice of Falun Gong in the United States.
The first merits hearing in Yang's removal case took place in September 2008. About a month later, Yang married Li. As we noted, Li immediately filed an I-130 petition on Yang's behalf, but USCIS tentatively decided to deny it on ...