         08-5939-ag
         Thein v. Holder
                                                                                        BIA
                                                                                   Ferris, IJ
                                                                               A098 975 489
                            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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 1 st day of February, two thousand ten.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                DEBRA ANN LIVINGSTON,
 9                GERARD E. LYNCH,
10                         Circuit Judges.
11       _________________________________________
12
13       KYAW MYO THEIN,
14                Petitioner,
15
16                         v.                                   08-5939-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., 1 UNITED STATES
19       ATTORNEY GENERAL, UNITED STATES
20       CITIZENSHIP AND IMMIGRATION SERVICES,
21                Respondents.
22       _________________________________________
23
24
25
26


                  1
               Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric. H. Holder, Jr. is
         automatically substituted for former Attorney General
         Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONER:         Patrick Wang, New York, New York.
 2
 3   FOR RESPONDENTS:        Michael F. Hertz, Acting Assistant
 4                           Attorney General; Anthony C. Payne,
 5                           Senior Litigation Counsel; Tiffany
 6                           Walters Kleinert, Trial Attorney,
 7                           Office of Immigration Litigation,
 8                           United States Department of Justice,
 9                           Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

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

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

14   is GRANTED in part and DISMISSED in part.

15       Petitioner Kyaw Myo Thein, a native and citizen of

16   Burma, 2 seeks review of the November 7, 2008 order of the

17   BIA, affirming the February 21, 2007 decision of Immigration

18   Judge (“IJ”) Noel Ferris, which pretermitted his application

19   for asylum and denied his application for withholding of

20   removal and relief under the Convention Against Torture

21   (“CAT”).   In re Kyaw Myo Thein, No. A098 975 489 (B.I.A.



         2
           In 1989, the military regime in control of Burma
     declared that the country would henceforth be known as
     “Myanmar.” However, both Thein and the agency refer to the
     country as “Burma,” and, according to the CIA’s World
     Factbook, the name “Myanmar” “was not approved by any
     sitting legislature in Burma, and the U.S. Government did
     not adopt the name.” CIA, The World Factbook - Burma,
     https://www.cia.gov/library/publications/the-world-
     factbook/geos/bm.html. Accordingly, we refer to Thein’s
     native country as “Burma.”

                                   2
1    Nov. 7, 2008), aff’g A098 975 489 (Immig. Ct. N.Y. City Feb.

2    21, 2007).    We assume the parties’ familiarity with the

3    underlying facts and procedural history of the case.

4         When the BIA adopts the decision of the IJ and

5    supplements the IJ’s decision, this Court reviews the

6    decision of the IJ as supplemented by the BIA.    Yan Chen v.

7    Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    We review the

8    agency’s factual findings under the substantial evidence

9    standard.    8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S.

10   Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).

11   Questions of law and the application of law to undisputed

12   fact are reviewed de novo.    Bah v. Mukasey, 529 F.3d 99, 110

13   (2d Cir. 2008).

14   I.   Asylum: One-Year Bar to Jurisdiction

15        Title 8, Section 1158(a)(3) of the United States Code

16   provides that no court shall have jurisdiction to review the

17   agency’s finding that an asylum application was untimely

18   under 8 U.S.C. § 1158(a)(2)(B), or the Attorney General’s

19   finding of neither changed nor extraordinary circumstances

20   excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D).

21   Notwithstanding that provision, however, we retain

22   jurisdiction to review constitutional claims and questions

                                    3
1    of law.   See 8 U.S.C. § 1252(a)(2)(D).

2        Here, Thein argues that he filed his asylum application

3    within a reasonable period after his changed circumstances.

4    Because that argument essentially challenges the agency’s

5    exercise of discretion, it presents neither a constitutional

6    claim nor a question of law.    See Xiao Ji Chen v. U.S. Dep’t

7    of Justice, 471 F.3d 315, 328-29 (2d Cir. 2006).

8    Accordingly, we dismiss the petition for review to the

9    extent Thein challenges the pretermission of his untimely

10   asylum application.    See 8 U.S.C. § 1158(a)(3).

11   II. Withholding of Removal

12       In its decision, the BIA concluded that the IJ had not

13   made an explicit credibility determination and stated that

14   it would “presume that [Thein] is credible.”    Despite that

15   statement, however, the BIA plainly disbelieved aspects of

16   Thein’s claim.   For example, as the IJ had done, the BIA

17   called into question Thein’s claim that he feared future

18   persecution on account of his recent dissemination of anti-

19   government materials because he omitted that claim from his

20   written application.    Citing two of this Court’s decisions

21   concerning adverse credibility determinations, the BIA

22   called the omission “significant.”    Similarly, the BIA

                                    4
1    devoted a paragraph of its decision to the IJ’s findings

2    concerning the absence of corroborating evidence --

3    specifically, the absence of a letter from Thein’s wife.

4    Yet this portion of the IJ’s decision also concerned Thein’s

5    credibility.   Moreover, the BIA stated that Thein had

6    “admitted to leaving [Burma] because he could make more

7    money working in the U.S.”    Again, a finding that Thein came

8    to the United States to make money as opposed to fleeing

9    persecution calls into question the subjective nature of

10   Thein’s claim —- whether he actually fears persecution as

11   opposed to whether his fear is objectively reasonable even

12   if subjectively held.    Viewing the BIA’s decision as a

13   whole, it appears to have purported to assume Thein’s

14   credibility on one hand, while calling his credibility into

15   question on the other.    While the record may reveal reasons

16   to question Thein’s credibility, having found that the IJ

17   did not make a sufficiently explicit adverse credibility

18   determination, see 8 U.S.C. § 1158(b)(1)(B)(iii), the BIA

19   was not free to make its own.       See Fen Yong Chen v. BCIS,

20   470 F.3d 509, 514-15 (2d Cir. 2006).

21       The inconsistency between the BIA’s statement that it

22   would presume the credibility of Thein’s testimony and its


                                     5
1    actual analysis of the record is apparent throughout the

2    agency’s assessment whether Thein satisfied his burden of

3    proof.   The BIA relied in part, for example, on the

4    conclusion that Thein’s family remained unharmed in Burma in

5    determining that he had not made out a withholding claim.

6    Thein testified, however, that he had disseminated anti-

7    government materials in Burma.    If this testimony is

8    presumed to be credible, a burden of proof analysis relying

9    on the fact that his family members had not been harmed

10   would require some assessment whether Thein’s family members

11   are similarly situated to him in this regard.    See Tian-Yong

12   Chen v. U.S. INS, 359 F.3d 121, 127-28 (2d Cir. 2004);

13   Matter of A-E-M-, 21 I. & N. Dec. 1157, 1170-71 (BIA 1998).

14   The BIA failed to perform such an assessment or to

15   acknowledge Thein’s testimony that his wife had informed him

16   that the authorities had twice searched her home, telling

17   her that he was wanted for distributing subversive

18   literature and stating that if he returned, he would be

19   arrested.

20       As we have stated, our “review is frustrated when it is

21   unclear whether the agency has made an adverse credibility

22   determination.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.


                                   6
1    2008).   Here, because the BIA’s decision is sufficiently

2    ambiguous on this point as to frustrate meaningful review,

3    remand is required on this basis alone.    We thus need not

4    consider Thein’s argument that the IJ’s conduct affected the

5    outcome of his hearing.   Further, because Thein does not

6    challenge the denial of his application for relief under the

7    CAT in his brief, the CAT claim is waived.    See Yueqing

8    Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005).

9        For the foregoing reasons, the petition for review is

10   GRANTED in part and DISMISSED in part.    The case is REMANDED

11   for further proceedings consistent with this order.    As we

12   have completed our review, any stay of removal that the

13   Court previously granted in this petition is VACATED, and

14   any pending motion for a stay of removal in this petition is

15   DISMISSED as moot. Any pending request for oral argument in

16   this petition is DENIED in accordance with Federal Rule of

17   Appellate Procedure 34(a)(2) and Second Circuit Local Rule

18   34(b).

19                               FOR THE COURT:

20                               Catherine O’Hagan Wolfe, Clerk

21

22
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