         13-711
         Yokoyama v. Holder
                                                                                        BIA
                                                                                   Ferris, IJ
                                                                               A088 445 387
                               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 A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 25th day of June, two thousand fourteen.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                GUIDO CALABRESI,
 9                REENA RAGGI,
10                     Circuit Judges.
11       _____________________________________
12
13       MICHI YOKOYAMA,
14                Petitioner,
15                                                              13-711
16                            v.                                NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Matthew L. Guadagno, New York, New
24                                      York.
25
26       FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
27                                      General; Blair T. O’Connor,
28                                      Assistant Director; Juria L. Jones,
29                                      Trial Attorney, Office of
 1                          Immigration Litigation, Civil
 2                          Division, United States Department
 3                          of Justice, Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

 6   Board of Immigration Appeals (“BIA”) decision, it is hereby

 7   ORDERED, ADJUDGED, AND DECREED that the petition for review

 8   is GRANTED in part and DENIED in part.

 9       Petitioner, Michi Yokoyama, a native and citizen of

10   Japan, seeks review of a January 30, 2013, decision of the

11   BIA affirming the July 10, 2012, decision of Immigration

12   Judge (“IJ”) Noel A. Ferris denying her application for

13   asylum, withholding of removal, and relief under the

14   Convention Against Torture (“CAT”).   In re Michi Yokoyama,

15   No. A088 445 387 (B.I.A. Jan. 30, 2013), aff’g No. A088 445

16   387 (Immig. Ct. N.Y. City July 10, 2012).   We assume the

17   parties’ familiarity with the underlying facts and

18   procedural history of the case.

19       Under the circumstances of this case, we have reviewed

20   the IJ’s decision as supplemented by the BIA.    See Yan Chen

21   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).   The

22   applicable standards of review are well-established.    See

23   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

24   510, 513 (2d Cir. 2009).


                                  2
 1   I.   Asylum and Withholding of Removal

 2        The BIA affirmed the IJ’s denial of asylum and

 3   withholding of removal based on: Yokoyama’s failure to

 4   establish a well-founded fear of persecution on account of

 5   her membership in a particular social group and also applied

 6   the serious nonpolitical crime bar to relief, which rendered

 7   her statutorily ineligible for relief.     Both conclusions are

 8   flawed and require remand.

 9        A.   Serious Nonpolitical Crime Bar

10        The BIA found that Yokoyama’s embezzlement charges gave

11   sufficient cause to believe that she had committed a serious

12   nonpolitical crime and she failed to rebut the presumption

13   that the bar applied.   The BIA’s application of the bar

14   without notice to Yokoyama constitutes error.

15        Asylum and withholding of removal under 8 U.S.C.

16   § 1231(b)(3) and the CAT are unavailable if “there are

17   serious reasons [i.e., probable cause] for believing that

18   the [applicant] has committed a serious nonpolitical crime

19   outside the United States prior to [her] arrival [] in the

20   United States.”   8 U.S.C. § 1158(b)(2)(A)(iii); see also

21   8 U.S.C. § 1231(b)(3)(B)(iii); 8 C.F.R. § 1208.16(d)(2); Guo

22   Qi Wang v. Holder, 583 F.3d 86, 90 (2d Cir. 2009) (equating


                                   3
 1   “serious reasons for believing” to probable cause).   Once

 2   the agency has determined that a statutory bar may apply,

 3   the applicant shall have the burden of proving by a

 4   preponderance of evidence that such grounds do not apply.

 5   See 8 C.F.R. §§ 1240.8(d), 1208.13(c)(2)(ii), 1208.16(d)(2).

 6   The agency is then required, as a matter of due process, to

 7   give the applicant the opportunity to rebut the presumptive

 8   application of the bar.   See Monter v. Gonzalez, 430 F.3d

 9   546, 552 (2d Cir. 2005) (finding that BIA’s conclusion that

10   the applicant materially misrepresented facts was premature

11   and erroneous due to both its and the IJ’s failure to give

12   the applicant the opportunity to rebut the presumption of

13   removability based on the misrepresentation).

14       Here, the IJ did not address the bar at all and

15   consequently did not put Yokoyama on notice that the she

16   bore the burden to show that it did not apply.   See Monter,

17   430 F.3d at 552.   Although Yokoyama declined to discuss the

18   charges against her, asserting the Fifth Amendment right

19   against self-incrimination, she had no notice that her

20   failure to testify regarding the charges would result in the

21   application of the bar and render her statutorily ineligible

22   for relief.   Thus, the BIA’s application of the bar violated


                                   4
 1   her due process rights.     See id.; see also Li Hua Lin v.

 2   U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006)

 3   (noting that due process “requires that an applicant receive

 4   a full and fair hearing which provides a meaningful

 5   opportunity to be heard”).

 6       B.   Persecution and Nexus Findings

 7       Yokoyama contends that she established a well-founded

 8   fear of future persecution on account of her membership in

 9   two social groups: assertive, Americanized Japanese women

10   and female detainees in Japan.      However, the BIA failed to

11   sufficiently address these claims.

12       When an alien does not rely on a claim of past

13   persecution, she must demonstrate that there is an

14   objectively reasonable basis for fearing that she will be

15   persecuted on account of a protected ground, which includes

16   a particular social group.     See 8 U.S.C. §§ 1101(a)(42),

17   1231(b)(3)(A).    To the extent Yokoyama argues that the

18   Japanese government will persecute her on account of the

19   fact that she is charged with embezzlement, her argument is

20   unavailing, as the embezzlement prosecution is not

21   pretextual and it constitutes a valid state action, not

22   persecution.     See Saleh v. U.S. Dep’t of Justice, 962 F.2d


                                     5
 1   234, 239 (2d Cir. 1992).   For the same reasons, the IJ

 2   reasonably found that Yokoyama cannot establish a particular

 3   social group based on her suspected criminal activity.     See

 4   id. at 240; Matter of E-A-G-, 24 I. & N. Dec. 591, 596 (BIA

 5   2007) (“Treating affiliation with a criminal organization as

 6   being protected membership in a social group is inconsistent

 7   with the principles underlying the bars to asylum and

 8   withholding of removal based on criminal behavior.”).

 9       The BIA did not, however, address whether “Americanized

10   women who express their opinions” or “women accused of

11   crimes in Japan,” i.e. female detainees, constitute

12   particular social groups, or whether Yokoyama has a well

13   founded fear of harm as a member of those grounds.    In order

14   to establish asylum eligibility based on membership in a

15   particular social group, the alien must establish that the

16   group itself was cognizable, meaning that it: (1) exhibits a

17   shared characteristic that is socially visible to others in

18   the community; and (2) is defined with sufficient

19   particularity.    See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73

20   (2d Cir. 2007).   Although the BIA stated that Yokoyama did

21   not establish her membership in a particular social group,

22   it did so only in regard to her argument that she would be


                                    6
 1   persecuted as a suspected criminal.    Thus, the agency must

 2   determine in the first instance whether she has established

 3   that she is a member of the particular social group fo

 4   purposes of the INA, and whether she has a well founded fear

 5   of future persecution.    See Beskovic v. Gonzales, 467 F.3d

 6   223, 227 (2d Cir. 2006) (requiring a certain minimal level

 7   of analysis from agency decisions denying asylum to enable

 8   meaningful judicial review).

 9       Because both bases for the agency’s denial of asylum

10   and withholding of removal are flawed, remand to consider

11   these issues would not be futile.     See Alam v. Gonzales, 438

12   F.3d 184, 187-88 (2d Cir. 2006).

13   II. CAT Relief

14       Substantial evidence supports the agency’s finding that

15   Yokoyama did not establish a likelihood that she would be

16   tortured in Japan.   To demonstrate eligibility for CAT

17   relief, an applicant must show that she would more likely

18   than not be tortured.    See 8 C.F.R. §§ 1208.16(c), 1208.17;

19   Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004).     Not

20   all harm rises to the level of torture; rather, it is an

21   “extreme form of cruel and inhuman treatment,” 8 C.F.R.

22   § 208.18(a)(2)), which does not include “pain or suffering


                                    7
 1   arising only from, inherent in or incidental to lawful

 2   sanctions,” id. § 1208.18(a)(3).

 3       Yokoyama argues that the pretrial confinement and

 4   interrogation she will inevitably face in Japan constitute

 5   torture.   While a 2011 Report notes that Japanese prisons

 6   often were overcrowded and failed to provide adequate

 7   heating, even deplorable prison conditions do not constitute

 8   torture absent evidence of intent to torture.     See Pierre v.

 9   Gonzales, 502 F.3d 109, 121 (2d Cir. 2007).     Although

10   criminal defendants in Japan may be held in pretrial

11   detention for up to 23 days and may be subjected to unlawful

12   questioning techniques, such as being handcuffed to a chair

13   during a prolonged interrogation, and offered bail in

14   exchange for a confession, those acts do not involve the

15   “infliction or threatened infliction of severe physical [or

16   mental] pain or suffering,” 8 C.F.R. § 1208.18(a)(4)(i); see

17   also id. § 1208.18(a)(5).   The agency therefore reasonably

18   found that Yokoyama did not demonstrate that her pretrial

19   detention or, if convicted, imprisonment would constitute

20   torture.   See Khouzam, 361 F.3d at 171.

21       For the foregoing reasons, the petition for review is

22   GRANTED to the extent it challenges the denial of asylum and


                                   8
 1   withholding of removal and DENIED in regards to the denial

 2   of CAT relief.   As we have completed our review, any stay of

 3   removal that the Court previously granted in this petition

 4   is VACATED, and any pending motion for a stay of removal in

 5   this petition is DISMISSED as moot.    Any pending request for

 6   oral argument in this petition is DENIED in accordance with

 7   Federal Rule of Appellate Procedure 34(a)(2), and Second

 8   Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11




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