     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.

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

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

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

4    is DENIED.

5          Petitioner Boguang Li, a native and citizen of the

6    People’s Republic of China, seeks review of a November 2,

7    2017, decision of the BIA affirming a March 17, 2017, decision

8    of an Immigration Judge (“IJ”) denying asylum as a matter of

9    discretion    and   granting    withholding    of   removal.      In   re

10   Boguang Li, No. A205 625 723 (B.I.A. Nov. 2, 2017), aff’g No.

11   A205 625 723 (Immig. Ct. N.Y. City Mar. 17, 2017).             We assume

12   the   parties’    familiarity    with   the    underlying   facts      and

13   procedural history.

14         We have reviewed both the IJ’s and the BIA’s opinions

15   “for the sake of completeness.”               Wangchuck v. Dep’t of

16   Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006).               We review

17   the agency’s discretionary denial of asylum for abuse of

18   discretion.      See 8 U.S.C. § 1252(b)(4)(D) (“[T]he Attorney

19   General’s discretionary judgment whether to grant relief

20   under section 1158(a) of this title shall be conclusive unless

21   manifestly contrary to the law and an abuse of discretion.”);

22   Wu Zheng Huang v. INS, 436 F.3d 89, 96 (2d Cir. 2006).                 In


                                        2
1    deciding whether to deny asylum as a matter of discretion,

2    the agency considers the “totality of the circumstances” by

3    “balancing . . .      favorable and adverse factors.”        Wu Zheng

4    Huang, 436 F.3d at 98; see also In re H-, 21 I. & N. Dec.

5    337, 347–48 (BIA 1996).      “[T]he BIA has stated that ‘[t]he

6    danger of persecution will outweigh all but the most egregious

7    adverse factors.’”      Wu Zheng Huang, 436 F.3d at 98 (quoting

8    In re Kasinga, 21 I. & N. Dec. 357, 367 (BIA 1996)).               The

9    experience of past persecution also weighs in favor of a grant

10   of asylum, as do “general humanitarian reasons, independent

11   of the circumstances that led to the applicant’s refugee

12   status, such as his or her age, health, or family ties.”            In

13   re H-, 21 I. & N. Dec. at 347–48.         “Adverse factors include

14   criminal convictions, as well as significant violations of

15   national immigration laws and the manner of entry into this

16   country.”     Wu Zheng Huang, 436 F.3d at 98.

17       The agency did not abuse its discretion in denying Li

18   asylum as an exercise of discretion.         The agency considered

19   the factors that favored a grant of asylum, including that Li

20   had suffered persecution in China, had lived in the United

21   States for five years, and had paid U.S. taxes in 2014 and

22   2015,   and   also   considered   the   negative   factors   of   Li’s


                                       3
1    conviction for assault causing injury and his lack of family

2    ties in the United States.         Further, the BIA acknowledged

3    that Li had submitted evidence to rebut the factual basis of

4    his conviction but did not err in concluding that he had been

5    convicted    of    an   offense   involving   violence     given     his

6    conviction by jury based on witness testimony of violence.

7    See Wu Zheng Huang, 436 F.3d at 98.

8         We may consider Li’s arguments that the IJ failed to take

9    into account that Li was not a habitual offender, a terrorist

10   or removable as a result of his conviction, and that the IJ

11   failed to consider that Li suffered persecution in China

12   because these arguments are “subsidiary legal arguments, or

13   arguments by extension” of those raised before the BIA.            Gill

14   v. INS, 420 F.3d 82, 86 (2d Cir. 2005).                 Even so, Li’s

15   arguments are without merit.

16        Although it is error for the agency “to treat the single

17   factor of criminal conviction as an absolute bar” to asylum,

18   the agency may consider a criminal conviction as a factor,

19   regardless of whether it is a ground for removability, it is

20   a   noncitizen’s    only   conviction,   or   it   is    unrelated    to

21   terrorism.   “Because the purpose of adjustments of status is

22   to provide worthy aliens with special relief, we see no reason


                                       4
1    to prevent an IJ or the BIA from considering an applicant’s

2    anti-social   conduct–whether   leading    to    a    conviction,   a

3    Youthful   Offender   Adjudication,   or    no       legal   judgment

4    whatsoever–as an adverse factor in evaluating an application

5    for discretionary relief.”      Wallace v. Gonzales, 463 F.3d

6    135, 139 (2d Cir. 2006); see Castro-O’Ryan v. U.S. Dep’t of

7    Immigration and Naturalization, 847 F.2d 1307, 1313–14 (9th

8    Cir. 1987).   Further, contrary to Li’s argument, the agency

9    considered his past persecution in evaluating whether to deny

10   asylum as a matter of discretion.

11       Accordingly, although Li’s past persecution is a serious

12   factor in favor of a positive exercise of discretion, the

13   agency did not abuse its discretion when it concluded that

14   Li’s conviction for assault outweighed the positive factors

15   and that the totality of the circumstances did not merit a

16   positive exercise of discretion.      See Wu Zheng Huang, 436

17   F.3d at 99; see also Ke Zhen Zhao v. U.S. Dep’t of Justice,

18   265 F.3d 83, 93 (2d Cir. 2001) (“An abuse of discretion may

19   be found . . . where the [BIA’s] decision provides no rational

20   explanation, inexplicably departs from established policies,

21   is devoid of any reasoning, or contains only summary or

22   conclusory statements; that is to say, where the Board has


                                     5
1   acted   in    an   arbitrary   or    capricious   manner.”   (internal

2   citations omitted)).

3       For the foregoing reasons, the petition for review is

4   DENIED.      All pending motions and applications are DENIED and

5   stays VACATED.

6                                       FOR THE COURT:
7                                       Catherine O’Hagan Wolfe,
8                                       Clerk of Court




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