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Bao Tai Nian v. Eric H. Holder Jr.

June 28, 2012

BAO TAI NIAN, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A074-394-421

The opinion of the court was delivered by: Bea, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted June 12, 2012-San Francisco, California

Before: Ferdinand F. Fernandez, Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

7685

OPINION

Bao Tai Nian ("Bao"), a native and citizen of China, petitions for review of the Board of Immigration Appeals' ("BIA") decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Bao arrived in the United States as an alien crew member. His asylum proceeding was thus limited in scope-a so-called "asylum-only" proceeding. Because the Immigration Judge ("IJ") and BIA did not issue a final order of removal, this case presents the question whether we have jurisdiction to consider Bao's petition. We conclude that we have jurisdiction over the petition, and we deny review.

I. Content of "asylum-only" proceedings.

This case involves an "asylum-only" proceeding under 8 C.F.R. § 208.2(c). "Asylum-only" proceedings apply to certain groups of aliens who are not entitled to full asylum proceedings under the Immigration and Nationality Act ("INA"), including alien crew members, stowaways, and aliens who have entered the country under the Visa Waiver Program. 8 C.F.R. § 208.2(c)(1). These classes of aliens may have been given limited and temporary permission to enter the United States, as is the case for crew members landing temporarily in the United States and for visitors to the United States under the Visa Waiver Program. However, these limitations mean that these aliens may not challenge their removal, except that they may apply for asylum. See, e.g., 8 U.S.C. § 1282(b) ("[A]ny immigration officer may, in his discretion, if he determines that an alien is not a bona fide crewman, or does not intend to depart on the vessel or aircraft which brought him . . . remove[ ] [the crewman] from the United States . . . ."); 8 U.S.C. § 1187(b)(2) ("An alien may not be provided a waiver under the [Visa Waiver Program] unless the alien has waived any right . . . to contest, other than on the basis of an application for asylum, any action for removal of the alien.").

"Asylum-only," however, does not mean that the petitioner is limited to asylum in the relief he seeks. 8 C.F.R. § 208.2(c)(3)(i). No, he may also seek withholding of removal and protection under the CAT in the "asylum-only" proceeding. Id.; 8 C.F.R. § 1240.1(a)(1)(iii).*fn1 The limited scope of the proceedings means that parties are prohibited from raising "any other issues, including but not limited to issues of admissibility, deportability, eligibility for waivers, and eligibility for any other form of relief." 8 C.F.R. § 208.2(c)(3)(i). Since the alien is considered removable-otherwise he would not be in this proceeding-the IJ will not issue a final order of removal; the IJ determines only whether the petitioner is entitled to asylum, withholding of removal, or protection under the CAT. Id. If the petitioner is not entitled to any of the limited relief specified, he is removable and there is no bar to his removal. So understood, we proceed to consider Bao's claims.

II. Petitioner's factual claims; proceedings below.

Bao was a crew member aboard the Zhih Yung, a fishing vessel seized by the Coast Guard near San Diego. The Coast Guard found over 150 Chinese nationals on the ship and arrested the crew members for alien smuggling. Bao agreed to serve as a material witness in the U.S. government's prosecution, and he signed a statement against the alien smugglers ...


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