Guo Shou Wu v. Holder , 741 F.3d 211 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1685
GUO SHOU WU,
Petitioner,
v.
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
Wei Jia and Law Office of Wei Jia, on brief for petitioner.
Kristofer R. McDonald, Office of Immigration Litigation,
Department of Justice, Civil Division, Stuart F. Delery, Principal
Deputy Assistant Attorney General, Civil Division, and Leslie
McKay, Assistant Director, Office of Immigration Litigation, on
brief for respondent.
December 20, 2013
TORRUELLA, Circuit Judge. Guo Shou Wu, a native and
citizen of China, petitions for review of an order of the Board of
Immigration Appeals (BIA) dismissing his appeal of an order of an
Immigration Judge (IJ) denying his applications for relief from
removal. For the reasons set forth below, his petition is denied.
I. Background
Wu asserted the following facts in support of his claim.
He is married, and his wife still lives in China. In accordance
with China's family planning program, after the birth of their
first child, Wu's wife received, against her will, an intra-uterine
device. Wu and his wife consulted a private doctor and, without
the consent of family planning officials, had the device removed.
The couple became pregnant for a second time, and, despite efforts
to conceal the pregnancy, Wu's wife was subjected by family
planning officials to a forced abortion. Wu and his wife then
moved to a remote area, where she again became pregnant and gave
birth to their second child.
When it came time to register their children with the
government, over Wu's pleas and objections, family planning
officials detained and forcibly sterilized his wife as punishment
for having had an unsanctioned second child. Family planning
officials also fined the couple 5000 renminbi. Thereafter, Wu
remained in China without incident for nine years, at which point
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he illegally departed the country. He illegally entered the United
States and was charged with removability.
Appearing before an IJ in New York, Wu conceded
removability but requested relief from removal in the form of
asylum, withholding of removal, and protection under the Convention
Against Torture (CAT). To be granted asylum, Wu had to show that
he was unable or unwilling to return to China because had suffered
past persecution, or had a well founded fear of future persecution,
on account of his race, religion, nationality, membership in a
particular social group, or political opinion. See 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1)(A). To be granted withholding of
removal, Wu had to show that upon removal to China he would more
likely than not face future persecution on account of one of those
bases. See id. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)(2). Because
the "more likely than not" -- or "clear probability" -- standard
for withholding of removal is more stringent than that for asylum,
a petitioner unable to satisfy the asylum standard necessarily
fails the withholding of removal standard as well. See Mediouni v.
I.N.S., 314 F.3d 24, 27 (1st Cir. 2002). To be granted protection
under CAT, Wu had to show that upon removal to China he would more
likely than not be tortured. See 8 C.F.R. § 208.16(c)(2).
Wu's applications for relief were denied, and Wu's
subsequent appeal to the BIA was dismissed. Wu petitioned the
Second Circuit for review, but the petition was dismissed in
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accordance with a stipulation between the parties to vacate the
BIA's decision and to remand the matter for a new hearing in which
an IJ would consider any new evidence in addition to the evidence
from the previous hearing.
The matter was assigned to an IJ in Boston. The IJ
discredited Wu's testimony, but went on to address the merits of
Wu's applications as if he had testified credibly. In that regard,
the IJ found that Wu failed to establish either past persecution or
a well founded fear of future persecution, and thus was entitled to
neither asylum nor, a fortiori, withholding of removal. The IJ
also found that Wu failed to establish a clear probability of
future torture, and thus was not entitled to protection under CAT.
On appeal the BIA concluded that Wu's applications for relief were
governed by the REAL ID Act, which allows the IJ to make
credibility determinations "without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant's claim." Pub L. No. 109-13, Div. B, 119 Stat. 231
(codified at 8 U.S.C. § 1158(b)(1)(B)(iii)). The BIA also
concluded that Wu failed to demonstrate past persecution, a well
founded fear of future persecution, or a clear probability of
future torture, and thus was not entitled to relief from removal.
Accordingly, the BIA dismissed the appeal. This petition followed.
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II. Discussion
Wu petitions for review on the ground that the BIA erred
in concluding that (i) the REAL ID Act applied, (ii) Wu failed to
demonstrate past persecution, and (iii) Wu failed to demonstrate a
well founded fear of future persecution.1
A. Standard of Review
We review the BIA's legal conclusions de novo and its
factual determinations under the substantial evidence standard.
Soeung v. Holder, 677 F.3d 484, 487 (1st Cir. 2012). Under this
deferential standard, we must uphold the BIA's determination unless
the record not only supports, but compels the contrary conclusion.
López de Hincapié v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007).
B. REAL ID Act
Wu first asserts, and the Government concedes, that the
BIA erred in concluding that the REAL ID Act applied to Wu's case.
The IJ had found that the Act did not apply, and the BIA affirmed
the IJ's denial of relief. Nevertheless, the BIA said the Act
1
As noted above, the BIA's conclusions that Wu failed to
demonstrate either past persecution or a well founded fear of
future persecution allowed the BIA to dispose of both his asylum
claim and his withholding of removal claim. The BIA also concluded
that Wu failed to demonstrate a clear probability of torture,
agreeing with the IJ's finding in this regard and noting that Wu
did not specifically challenge that finding before the BIA. Wu
does not appear to specifically challenge that finding before us
either: While his brief references CAT, he does not argue that any
future harm he may suffer would rise to the level of torture.
Thus, we deem his CAT claim waived. See Hana v. Gonzales, 503 F.3d
39, 43 n.3 (1st Cir. 2007) ("Because this claim is perfunctory and
unaccompanied by developed argumentation, we deem it waived.").
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applied because it believed, mistakenly, that Wu filed his asylum
application after May 11, 2005. In fact, Wu filed his application
in 2002, so the Act does not apply. See In re S-B-, 24 I. & N.
Dec. 42, 43 (BIA 2006).
But Wu does not explain how this error affected his
case.2 After all, the BIA's order did not depend on any REAL ID
Act provisions, which, in this context, merely provide a framework
for the trier of fact to assess credibility, see id. at 42-43.
Indeed, the BIA assumed the credibility of Wu's testimony, but went
on to conclude that Wu failed to establish past persecution, a well
founded fear of future persecution, or a clear probability of
future torture. So the error was harmless. See Jaya v. Gonzales,
169 F. App'x 596, 598 (1st Cir. 2005) (invoking harmless error
doctrine in instance where BIA arguably erred).
2
The REAL ID Act applies to applications filed on or after
May 11, 2005. See Jabri v. Holder, 675 F.3d 20, 24 (1st Cir.
2012). In these cases, "a trier of fact may base an adverse
credibility determination on any inconsistency in the record that
has a bearing on the petitioner's veracity, 'without regard to
whether [the] inconsistency . . . goes to the heart of the
applicant's claim.'" Id. (alteration and omission in original)
(quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). In cases where the
application was filed before May 11, 2005, however, "an adverse
credibility determination may not be predicated on inconsistencies
in an applicant's testimony that do not go to the heart of the
applicant's claim." Lin v. Mukasey, 521 F.3d 22, 26 (1st Cir.
2008).
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C. Past Persecution
Wu next asserts that he is entitled to asylum because he
was persecuted for resisting China's coercive population control
program -- that is, he was persecuted on account of his political
opinion. Assuming for the sake of argument that Wu demonstrated
that he had resisted a coercive population control program, the BIA
nevertheless determined that Wu failed to show that he had been
persecuted. We cannot say that the record compels the contrary
conclusion.
In his brief, the only example of persecution that Wu
provides is that he was "deprived of his right, freedom and liberty
to father additional children with his wife." To support the
proposition that this deprivation amounts to persecution, Wu
directs us, not to any controlling authority, but to the Ninth
Circuit's decision in Jiang v. Holder, 611 F.3d 1086 (9th Cir.
2010). But Jiang did not hold that deprivation of the right to
father children, by itself, amounts to persecution. Rather, the
Ninth Circuit held that the forced abortion or sterilization of a
noncitizen's spouse is but one factor that can indicate
persecution. Id. at 1095. There, the noncitizen "offered
substantial evidence of additional persecution in support of his
claim," such as being (i) expelled from school, (ii) detained by
authorities, (iii) forced to pay a heavy fine to be released from
detention, (iv) subject to near arrest by police at his home on the
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morning of his wedding, and (v) forced to flee his hometown to hide
from authorities. Id. at 1095-96.
Here, by contrast, Wu mentions only the deprivation of
his ability to father more children. And even if we were to add to
that alleged deprivation the other harms that Wu arguably suffered
as a result of his resistance, we could not conclude that the
record compels a finding of past persecution. True, in 1992, Wu
was fined 5000 renminbi (which, according to the Government,
amounts to roughly $800 today) for fathering an unsanctioned second
child. But economic disadvantage must be severe and deliberate to
rise to the level of persecution, see Vanchurina v. Holder, 619
F.3d 95, 99 (1st Cir. 2010); In re T-Z-, 24 I. & N. Dec. 163, 173-
75 (BIA 2007), and the record does not indicate that the fine
caused Wu severe economic disadvantage.
Wu seems to argue that, if we refuse to hold that the
forced abortion and sterilization of his wife amounts to
persecution of him, we will somehow be punishing individuals like
his wife, who may plan to follow their spouses in fleeing alleged
persecution and seeking asylum in the United States. But this
argument was never made before the BIA and thus is beyond our
review. See Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004)
("[T]heories not advanced before the BIA may not be surfaced for
the first time in a petition for judicial review . . . .").
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D. Well Founded Fear of Future Persecution
Finally, Wu claims to have a well founded fear of future
persecution in response to either his resistance to China's
coercive population control program or his illegal departure. The
BIA concluded otherwise, and we cannot say that the record compels
the contrary conclusion.
1. Resistance to Coercive Population Control Program
In rejecting Wu's claim that he has a well founded fear
of future persecution as a result of his resistance to China's
coercive population control program, the BIA observed that Wu
remained in China for nine years without harm after his last
encounter with family planning officials, which occurred at the
time of his wife's forced sterilization. Wu now attacks that
observation as "ludicrous" and asks what further action could have
been expected of him. Wu seems to miss the point. The BIA was not
chastising Wu for failing to offer further resistance to the
population control program. Rather, the BIA was explaining that
Wu's alleged fear of future persecution for the resistance he did
offer was not well founded in light of the Chinese government's
apparent lack of interest in Wu during the nine years between his
resistance and departure. Wu's evidence falls short of compelling
the contrary conclusion.
Wu points out that the record contains a 2008 State
Department report that documents the abuse of a prisoner who
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protested China's family planning program. And Wu notes that the
record also includes testimony of an individual who, in a 1998
hearing before the House Subcommittee on International Operation
and Human Rights, expressed fear of returning to China because she
had violated the one-child policy. But in light of the fact that
the record also reflects that Wu lived in China for nearly a decade
without incident, we cannot say that these sources compel the
conclusion that Wu has a well founded fear of future harm. See,
e.g., Pan v. Gonzales, 445 F.3d 60, 62 (1st Cir. 2006) (finding no
well founded fear of persecution where noncitizen "remained in
China for two and a half years following the [alleged resistance],
[and] was never punished or persecuted because of her resistance").
2. Illegal Departure
Wu claims that he fears future persecution, in the form
of arrest and loss of income, in response to his illegal departure.
The BIA concluded that Wu failed to demonstrate either that he was
likely to be harmed or that any harm he suffered would rise to the
level of persecution. Wu says that the IJ failed to comply with
the Second Circuit's mandate to consider the evidence from Wu's
prior removal proceedings. But nothing in the BIA's decision
indicates that it failed to consider any of Wu's evidence.
That evidence consists partly of Wu's own testimony. It
is true that, at his initial hearing, he said that based on the
experiences of his relatives and friends in New York, those who
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departed China illegally would be fined and imprisoned upon their
return. And admittedly, at his remand hearing, Wu reiterated that
he feared that he would be arrested and sentenced and that his
family would be harmed physically, emotionally, and financially.
But the record neither indicates that the BIA ignored Wu's
testimony, nor compels the conclusion that his fears are well
founded or that any future harm would amount to persecution.
As Wu points out, in addition to his testimony, the
evidence includes 1998 and 2000 State Department reports
documenting the poor conditions and abuse that mar the facilities
in which those being repatriated are sometimes detained. But while
these reports may well support a conclusion contrary to the BIA's,
we cannot say that they compel that conclusion, at least in part
because of their out datedness.
III. Conclusion
For the reasons set forth above, Wu's petition for review
is DENIED.
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