Miaoyun Xia v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIAOYUN XIA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-70908
Agency No. A098-445-295
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 14, 2014**
Pasadena, California
Before: FARRIS, N.R. SMITH, and WATFORD, Circuit Judges.
1. The Board of Immigration Appeals (BIA) correctly concluded that Xia
filed her asylum application outside the one-year filing deadline and cannot show
extraordinary circumstances to excuse her delay. See 8 C.F.R. § 1208.4(a). Xia
arrived in the United States in May of 2002, but she did not file her asylum
FILED
FEB 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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application until March 1, 2005. She argues that her delay in filing was caused by
the disappearance of the lawyer she hired to prepare her asylum application. But
she discovered that the lawyer had disappeared in November 2003, and she still did
not file her asylum application until fifteen months later. The reasons for that
fifteen-month delay—lack of familiarity with immigration laws and her attorney’s
disappearance—do not constitute extraordinary circumstances excusing the delay.
See Al Ramahi v. Holder, 725 F.3d 1133, 1138–39 (9th Cir. 2013).
2. The BIA found that Xia failed to establish a nexus between her
mistreatment and a protected ground. But after the BIA issued its decision, we
decided Hu v. Holder, 652 F.3d 1011 (9th Cir. 2011). That case involved a
withholding claim similar to Xia’s, and analyzed the nexus requirement in the
context of a labor demonstrator arrested for disturbing the peace. Id. at 1014,
1019. In light of this intervening precedent, we remand Xia’s withholding of
removal claim to the BIA so that the BIA can reconsider whether Xia has met the
nexus requirement. See Pannu v. Holder, 639 F.3d 1225, 1227–29 (9th Cir. 2011).
3. The BIA’s denial of Xia’s claim for relief under the Convention Against
Torture (CAT) is supported by substantial evidence. The record does not compel
the conclusion that the abuse Xia suffered in custody amounted to torture under

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CAT, and she points to no evidence that she will suffer more severe abuse upon her
return to China. See Kumar v. Gonzales, 444 F.3d 1043, 1055–56 (9th Cir. 2006).
PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART,
and REMANDED.
The parties shall bear their own costs.

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