Li v. Barr BIA Poczter, IJ A205 625 723

17-3889
Li v. Barr
BIA
Poczter, IJ
A205 625 723
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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals 1
for the Second Circuit, held at the Thurgood Marshall 2
United States Courthouse, 40 Foley Square, in the City of 3
New York, on the 20
th
day of February, two thousand twenty. 4
5
PRESENT: 6
DENNIS JACOBS, 7
JOSÉ A. CABRANES, 8
JOSEPH F. BIANCO, 9
Circuit Judges. 10
_____________________________________ 11
12
BOGUANG LI, 13
Petitioner, 14
15
v. 17-3889 16
NAC 17
WILLIAM P. BARR, UNITED STATES 18
ATTORNEY GENERAL, 19
Respondent. 20
_____________________________________ 21
22
FOR PETITIONER: Keith S. Barnett, New York, NY. 23
24
FOR RESPONDENT: Joseph H. Hunt, Assistant 25
Attorney General; Andrew N. 26
O’Malley, Senior Litigation 27
Counsel; Sunah Lee, Trial 28
Attorney, Office of Immigration 29
Litigation, United States 30
Department of Justice, Washington, 31
DC. 32

2

UPON DUE CONSIDERATION of this petition for review of a 1
Board of Immigration Appeals (“BIA”) decision, it is hereby 2
ORDERED, ADJUDGED, AND DECREED that the petition for review 3
is DENIED. 4
Petitioner Boguang Li, a native and citizen of the 5
People’s Republic of China, seeks review of a November 2, 6
2017, decision of the BIA affirming a March 17, 2017, decision 7
of an Immigration Judge (“IJ”) denying asylum as a matter of 8
discretion and granting withholding of removal. In re 9
Boguang Li, No. A205 625 723 (B.I.A. Nov. 2, 2017), aff’g No. 10
A205 625 723 (Immig. Ct. N.Y. City Mar. 17, 2017). We assume 11
the parties’ familiarity with the underlying facts and 12
procedural history. 13
We have reviewed both the IJ’s and the BIA’s opinions 14
“for the sake of completeness.” Wangchuck v. Dep’t of 15
Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). We review 16
the agency’s discretionary denial of asylum for abuse of 17
discretion. See 8 U.S.C. § 1252(b)(4)(D) (“[T]he Attorney 18
General’s discretionary judgment whether to grant relief 19
under section 1158(a) of this title shall be conclusive unless 20
manifestly contrary to the law and an abuse of discretion.”); 21
Wu Zheng Huang v. INS, 436 F.3d 89, 96 (2d Cir. 2006). In 22

3

deciding whether to deny asylum as a matter of discretion, 1
the agency considers the “totality of the circumstances” by 2
“balancing . . . favorable and adverse factors.” Wu Zheng 3
Huang, 436 F.3d at 98; see also In re H-, 21 I. & N. Dec. 4
337, 347–48 (BIA 1996). “[T]he BIA has stated that ‘[t]he 5
danger of persecution will outweigh all but the most egregious 6
adverse factors.’” Wu Zheng Huang, 436 F.3d at 98 (quoting 7
In re Kasinga, 21 I. & N. Dec. 357, 367 (BIA 1996)). The 8
experience of past persecution also weighs in favor of a grant 9
of asylum, as do “general humanitarian reasons, independent 10
of the circumstances that led to the applicant’s refugee 11
status, such as his or her age, health, or family ties.” In 12
re H-, 21 I. & N. Dec. at 347–48. “Adverse factors include 13
criminal convictions, as well as significant violations of 14
national immigration laws and the manner of entry into this 15
country.” Wu Zheng Huang, 436 F.3d at 98. 16
The agency did not abuse its discretion in denying Li 17
asylum as an exercise of discretion. The agency considered 18
the factors that favored a grant of asylum, including that Li 19
had suffered persecution in China, had lived in the United 20
States for five years, and had paid U.S. taxes in 2014 and 21
2015, and also considered the negative factors of Li’s 22

4

conviction for assault causing injury and his lack of family 1
ties in the United States. Further, the BIA acknowledged 2
that Li had submitted evidence to rebut the factual basis of 3
his conviction but did not err in concluding that he had been 4
convicted of an offense involving violence given his 5
conviction by jury based on witness testimony of violence. 6
See Wu Zheng Huang, 436 F.3d at 98. 7
We may consider Li’s arguments that the IJ failed to take 8
into account that Li was not a habitual offender, a terrorist 9
or removable as a result of his conviction, and that the IJ 10
failed to consider that Li suffered persecution in China 11
because these arguments are “subsidiary legal arguments, or 12
arguments by extension” of those raised before the BIA. Gill 13
v. INS, 420 F.3d 82, 86 (2d Cir. 2005). Even so, Li’s 14
arguments are without merit. 15
Although it is error for the agency “to treat the single 16
factor of criminal conviction as an absolute bar” to asylum, 17
the agency may consider a criminal conviction as a factor, 18
regardless of whether it is a ground for removability, it is 19
a noncitizen’s only conviction, or it is unrelated to 20
terrorism. “Because the purpose of adjustments of status is 21
to provide worthy aliens with special relief, we see no reason 22

5

to prevent an IJ or the BIA from considering an applicant’s 1
anti-social conduct–whether leading to a conviction, a 2
Youthful Offender Adjudication, or no legal judgment 3
whatsoever–as an adverse factor in evaluating an application 4
for discretionary relief.” Wallace v. Gonzales, 463 F.3d 5
135, 139 (2d Cir. 2006); see Castro-O’Ryan v. U.S. Dep’t of 6
Immigration and Naturalization, 847 F.2d 1307, 1313–14 (9th 7
Cir. 1987). Further, contrary to Li’s argument, the agency 8
considered his past persecution in evaluating whether to deny 9
asylum as a matter of discretion. 10
Accordingly, although Li’s past persecution is a serious 11
factor in favor of a positive exercise of discretion, the 12
agency did not abuse its discretion when it concluded that 13
Li’s conviction for assault outweighed the positive factors 14
and that the totality of the circumstances did not merit a 15
positive exercise of discretion. See Wu Zheng Huang, 436 16
F.3d at 99; see also Ke Zhen Zhao v. U.S. Dep’t of Justice, 17
265 F.3d 83, 93 (2d Cir. 2001) (“An abuse of discretion may 18
be found . . . where the [BIA’s] decision provides no rational 19
explanation, inexplicably departs from established policies, 20
is devoid of any reasoning, or contains only summary or 21
conclusory statements; that is to say, where the Board has 22

6

acted in an arbitrary or capricious manner.” (internal 1
citations omitted)). 2
For the foregoing reasons, the petition for review is 3
DENIED. All pending motions and applications are DENIED and 4
stays VACATED. 5
FOR THE COURT: 6
Catherine O’Hagan Wolfe, 7
Clerk of Court 8