Qi Hui Chen v. Holder ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
December 15, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
QI HUI CHEN; YIYAO LI CHEN,
Petitioners,
v. No. 10-9590
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before TYMKOVICH, Circuit Judge, BRORBY, Senior Circuit Judge, and
EBEL, Circuit Judge.
Qi Hui Chen and his son, Yiyao Li Chen, natives and citizens of China,
petition for review of the Board of Immigration Appeals’ (BIA) decisions
affirming the Immigration Judge’s (IJ) decision to deny their requests for asylum
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and restriction on removal. 1 Exercising our jurisdiction under 8 U.S.C. § 1252(a),
we deny the petition.
I. Background
Qi Hui Chen (Qi Hui) arrived in the United States in January 1997. He
submitted his asylum application in September 2006. Yiyao Li Chen (Yiyao Li)
came to the United States in October 2004. He submitted his asylum application
in December 2007.
Qi Hui sought asylum and restriction on removal based on his political
opinion and membership in a particular social group. 2 His application was based
on his opposition to the family-planning policy in China. He stated that his wife
was forcibly sterilized after the birth of their second child in 1984. Qi Hui
testified that he spoke out against the Chinese family-planning policies because
he was angered by the abortions that three of his neighbors had been forced to
undergo.
He further testified that after speaking out against the family-planning
policies he was detained by village officials for three days. He said that he was
1
The IJ also denied relief under the Convention Against Torture (CAT). The
Chens appealed that determination to the BIA and the BIA affirmed the IJ’s
decision. In this appeal, the Chens have not sought review of the agency’s
determination that they are not entitled to relief under the CAT.
2
The BIA’s decision also mentions Qi Hui’s Christian religion. The BIA
noted, however, that Qi Hui did not allege that he was persecuted in China on
account of his religion, and he did not demonstrate a well-founded fear of future
persecution. Qi Hui does not challenge this determination on appeal.
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not given any food or water and that he was beaten during the detention. He
explained that he was bruised after the beatings but did not require medical
attention. The detention occurred in November 1996. Qi Hui left China for the
United States in 1997.
Yiyao Li sought asylum and restriction on removal based on his political
opinion. 3 Yiyao Li got married in July 2004. In September of that year, his wife
was forced to undergo an abortion. He testified that he became upset after
learning of the abortion and went to the village officials to denounce their actions
and the birth control policy. He was arrested and detained for three days without
food or water. He was beaten and suffered bruises on his legs and back. About a
month later, he left China and came to the United States.
Qi Hui testified that, at the end of 2006, he and Yiyao Li sent a letter to
their church in China suggesting that the church should not endorse the
birth-control policy anymore. Qi Hui testified that a few weeks after they sent the
letter, his wife received a notice accusing him and Yiyao Li of opposing the
family-planning law. The letter instructed the Chens to surrender. When the
Chens failed to surrender, village officials called in Qi Hui’s wife for questioning.
3
As it did with Qi Hui, the BIA mentioned Yiyao Li’s Christian religion in
its decision. It noted, however, that Yiyao Li did not allege that he was
persecuted in China on account of his religion, and he had not demonstrated a
well-founded fear of future persecution. Yiyao Li does not challenge this
determination on appeal.
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Qi Hui submitted an affidavit from his wife in which she stated that the officials
threatened to “severely punish” her husband and son once they were caught.
Admin. R. at 318.
II. Procedural Background and Motion to Bifurcate
Although the Chens each filed their own asylum applications, they moved
to consolidate their removal proceedings. The IJ held one hearing on both
applications and issued one decision denying all forms of relief.
The Chens appealed to the BIA. The BIA affirmed the IJ’s denial of relief,
but it issued two separate decisions explaining that “[b]ecause of the different
issues in the respondents cases, their records will be severed for administrative
convenience.” Admin. R. at 3 n.1, 483 n.1. The Chens filed one petition for
review, listing both of their names in the caption but identifying Yiyao Li as a
“rider” on the petition.
Before briefing in this appeal, the Chens filed an unopposed motion to
bifurcate the petition for review based on counsel’s conclusion that two separate
petitions should have been filed. The Chens asserted that judicial economy would
be served by having two single-party petitions that addressed the separate BIA
decisions relating to each individual petitioner. The Chens noted that there
should not be any jurisdictional problems in bifurcating the instant petition into
two separate petitions because Yiyao Li was included as a rider on the initial
petition for review.
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Although we agree that the better practice would have been for the Chens
to file separate petitions for review from the separate BIA decisions, under the
circumstances in this case, it was sufficient to file a single petition for review and
it is not in the interests of judicial economy to bifurcate the proceedings at this
point. We reach this conclusion based upon the following considerations: (1) the
petitioners are family members presenting related claims (although their claims
for past persecution are based on different events, their claims for future
persecution are based on the same event); (2) the IJ conducted a joint hearing on
the claims and issued a single decision; (3) a single administrative record was
compiled; (4) the BIA issued two decisions merely as a matter of administrative
convenience; (5) there is no jurisdictional issue because the petition for review
was filed within thirty days of the administrative decision and identified both
petitioners as seeking review of the agency decision; and (6) the petitioners filed
a joint brief on appeal. Accordingly, we deny the motion to bifurcate.
III. Discussion
The BIA affirmed the IJ’s decision in two, single-member brief orders.
See Admin. R. at 1-5; 482-484. In these circumstances, the BIA’s decisions are
the final orders under review. See Ritonga v. Holder, 633 F.3d 971, 974
(10th Cir. 2011). “We review the BIA’s legal determinations de novo, and its
findings of fact under a substantial-evidence standard.” Niang v. Gonzales,
422 F.3d 1187, 1196 (10th Cir. 2005).
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To be eligible for asylum, an alien must first meet the definition of
“refugee,” which requires a showing of past persecution or “‘a well-founded fear
of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.’” Ba v. Mukasey, 539 F.3d 1265,
1268 (10th Cir. 2008) (quoting 8 U.S.C. § 1101(a)(42)(A)). To be eligible for
restriction on removal, an alien must show that he suffered past persecution or
that it is more likely than not that he will be subject to future persecution if he is
removed to the proposed country of removal. 4 8 C.F.R. § 1208.16(b)(1), (2).
“Persecution is the infliction of suffering or harm upon those who differ (in race,
religion, or political opinion) in a way regarded as offensive and must entail more
than just restrictions or threats to life and liberty.” Ritonga, 633 F.3d at 975(quotation omitted).
A. Qi Hui
The BIA affirmed the IJ’s determination that Qi Hui did not timely file his
asylum application and that no exceptions to the filing deadline applied. Qi Hui
does not challenge that determination on appeal.
4
We have previously explained that the term “withholding of removal” was
changed to “restriction on removal” as part of amendments made by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L.
No. 104-208, 100 Stat. 3009, and that “we use the statutory term restriction on
removal,” despite the fact that the regulations and the agency continue to use the
term withholding of removal. Ismaiel v. Mukasey, 516 F.3d 1198, 1200 n.2
(10th Cir. 2008).
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Although the BIA upheld the IJ’s determination that Qi Hui’s asylum
application was untimely, it nevertheless considered his claim under the asylum
standard, which has a lower threshold showing than restriction on removal, see
Ba, 539 F.3d at 1271. The BIA agreed with the IJ that the “evidence of record is
insufficient to demonstrate that [Qi Hui] suffered past persecution or has a
well-founded fear of persecution on account of a protected ground.” Admin. R. at
3. Because Qi Hui failed to meet the standard for asylum, he necessarily failed to
meet the higher showing required for restriction on removal. See id.Qi Hui first argues that we should consider the cumulative effects of the
harm he suffered, citing to Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir.
2009). He contends that the cumulative effect of his three-day detention–which
included beatings and deprivation of food and water–and his wife’s forced
sterilization, constitute past persecution.
“In this circuit, the determination whether an alien has demonstrated
persecution is a question of fact.” Ritonga, 633 F.3d at 974 (quotation omitted).
“The BIA’s findings of fact are conclusive unless the record demonstrates that
any reasonable adjudicator would be compelled to conclude to the contrary.”
Niang, 422 F.3d at 1196 (quotation omitted). Here, the BIA “agree[d] with the
[IJ’s] findings that, even if the evidence had established that [Qi Hui’s] wife had
suffered a forced sterilization, and [he] had demonstrated that he engaged in other
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resistance [to the family-planning policy], he had failed to show that he
experienced harm rising to the level of persecution.” Admin. R. at 4. 5
In similar circumstances, we have upheld the agency’s determination that a
brief detention and beating did not rise to the level of persecution. See Kapcia v.
INS, 944 F.2d 702, 704, 708 (10th Cir. 1991) (concluding that alien’s two-day
detention that involved interrogation and beating did not rise to the level of past
persecution). Likewise, in the Ritonga and Witjaksono cases, both of those
petitioners, like Qi Hui, suffered minor injuries from a “lone occasion” when they
were physically harmed; we concluded that those circumstances did not constitute
persecution. Ritonga, 633 F.3d at 976; Witjaksono, 573 F.3d at 977. There is
nothing in Qi Hui’s case that compels a different conclusion.
As for his wife’s sterilization, spouses are not per se eligible for relief
based on the forced sterilization of the other spouse. See Lin-Zheng v. Att’y Gen.,
557 F.3d 147, 156-57 (3d Cir. 2009) (en banc); Matter of J-S-, 24 I. & N.
Dec. 520, 537-38 (BIA 2008). Accordingly, the sterilization of Qi Hui’s wife
standing alone does not compel the conclusion that Qi Hui suffered persecution.
Even considering the sterilization in conjunction with the detention and beatings,
as the BIA did, the record does not compel the conclusion that a reasonable
5
We note that the IJ made an adverse credibility finding as part of its
decision, but the BIA did not rely on that finding to affirm the denial of relief.
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adjudicator would have reached a conclusion contrary to the BIA’s determination
that Qi Hui did not suffer harm rising to the level of persecution.
Qi Hui next contends he is eligible for restriction on removal because he
demonstrated that it is more likely than not that he will be persecuted if he returns
to China. The BIA, however, agreed with the IJ that the record evidence was
insufficient to support Qi Hui’s claim for future persecution. See Admin. R. at 4.
Qi Hui argues that “[t]he substantial evidence in the record demonstrates
that his spouse was summoned to the village office for interrogation . . . [and]
[o]fficials demanded that [Qi Hui] return to China in order to face punishment for
his opposition to the family planning policy.” Pet’r Br. at 18. Qi Hui further
argues that “[t]he Agency seemed to ignore this aspect of [Qi Hui’s] testimony in
assessing his eligibility for [restriction on removal.” Id.While it is true that the BIA did not specifically mention this evidence, it
was not required to do so. See Hadjimehdigholi v. INS, 49 F.3d 642, 648 n.2
(10th Cir. 1995) (“[T]he BIA is not required to discuss every piece of evidence
when it renders a decision.”). “[A]ll that is necessary is a decision that sets out
terms sufficient to enable us as a reviewing court to see that the Board has heard,
considered, and decided.” Id. (quotation omitted). We see nothing in the BIA’s
decision that indicates it failed to consider this evidence. Rather, the BIA agreed
with the IJ that the record evidence was insufficient to establish a well-founded
fear of persecution. The record does not compel the conclusion that a reasonable
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adjudicator would reach a decision contrary to the BIA’s determination. See
Niang, 422 F.3d at 1196.
B. Yiyao Li
The BIA affirmed the IJ’s determination that Yiyao Li was not eligible for
asylum6 or restriction on removal. The IJ found that Yiyao Li was not credible,
but explained that regardless of whether he was credible, his claims were not
sufficient to qualify for asylum or restriction on removal. The BIA upheld the
IJ’s adverse credibility finding, but also “agreed with the [IJ] that the evidence of
record is insufficient to demonstrate that [Yiyao Li] suffered past persecution or
has a well-founded fear of persecution on account of a protected ground.”
Admin. R. at 484.
Yiyao Li first challenges the BIA’s decision to uphold the IJ’s adverse
credibility finding. We need not reach that challenge, however, because we can
affirm the BIA’s decision on the merits of Yiyao Li’s application for relief. The
incidents giving rise to Yiyao Li’s claim of past persecution are very similar to
those described by Qi Hui: a three-day detention that included beatings and being
deprived of food and water. Yiyao Li also relies on his wife’s forced abortion
(which is similar to Qi Hui’s wife’s forced sterilization). As discussed above
with respect to Qi Hui’s claim for past persecution, these incidents would not
6
Unlike Qi Hui, the IJ concluded that Yiyao Li’s asylum application was
not time-barred and allowed Yiyao Li to proceed with that claim.
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compel a reasonable adjudicator to reach a conclusion contrary to the BIA’s
determination that Yiyao Li did not suffer past persecution.
Yiyao Li’s claim for future persecution likewise fails. His claim is based
on the same evidence referenced by Qi Hui that “officials demanded that he return
to China to face punishment for his opposition to the family planning policy.”
Pet’r Br. at 23. Again, the record does not compel the conclusion that a
reasonable adjudicator would reach a decision contrary to the BIA’s
determination that Yiyao Li failed to establish a well-founded fear of future
persecution.
IV. Conclusion
The petition for review is DENIED. The motion to bifurcate is DENIED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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