Liang Yin Shao v. U.S. Attorney General , 336 F. App'x 965 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-17264 ELEVENTH CIRCUIT
JULY 15, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A097-658-426
LIANG YIN SHAO,
a.k.a. Liang Yin Xiao,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 15, 2009)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Liang Yin Shao petitions for review of the final order of the Board of
Immigration Appeals (“BIA”), which affirmed the Immigration Judge’s (“IJ”)
denial of his claims for asylum and withholding of removal under 8 U.S.C. §§
1158 and 1231, and relief under the United Nations Convention Against Torture
(“CAT”), 8 C.F.R. § 208.16. For the reasons stated herein, we deny the petition.
I. BACKGROUND
On April 13, 2005, Shao, a native and citizen of China, received a notice to
appear charging him with entering the United States without a valid entry
document, in violation of 8 U.S.C. § 1227(a)(7)(A)(i)(I). Shao conceded
removability and filed for asylum, withholding of removal, and CAT relief.
Shao argued that he was entitled to asylum because the Chinese government
had forced his wife to abort an unauthorized pregnancy and to be sterilized after
she gave birth to their second child. In support of his asylum application, Shao
submitted a sworn statement with supporting documentation and testified before
the IJ.1 According to this evidence, officials forced Shao’s wife to have an IUD
inserted following the birth of their first child. Shao testified that he was not
present when officials took his wife because he was “on the street . . . shopping.”
Because his wife had a bad reaction to the IUD, she asked a private doctor to
remove the device and, a few months thereafter, she became pregnant again. Shao
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Shao presented letters from his wife, his father and a neighbor, birth certificates for
members of his immediate family, his household register, his marriage certificate, and an x-ray
examination report, birth control operation certificate, and other medical records for his wife.
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sent his wife to live at his brother’s house to hide the pregnancy, but Chinese
officials found her, arrested her, and forced her to undergo an abortion and to have
another IUD inserted. Several years later, the government allowed Shoa and his
wife to remove the IUD and have another child. After the birth of their second
child, officials came to their home and forcibly took Shao’s wife to the hospital to
undergo a sterilization operation. Shao testified that he “tried to stop [the officials
taking away his wife] but there was no way for [him] to stop them.” Six years
later, Shao fled to the United States with the help of a smuggler, leaving his wife
and two children in China. Shao testified that he believes, if he returned to China,
he would be arrested, jailed, and fined for leaving the country illegally and would
be persecuted because he had violated the family planning policies in China. Shao
also submitted to the IJ a 2005 report entitled “China: Profile of Asylum Claims
and Country Conditions”, the 2004 State Department Country Report on human
rights practices for China, and articles about China’s birth control policy.
On August 3, 2006, the IJ denied Shao’s application for asylum, withholding
of removal, and CAT relief. The IJ found that Shao’s assertions that his wife had
been forced to have an abortion and had been involuntarily sterilized were not
credible and that the fact Shao remained in China for six years after the
sterilization of his wife belied his claimed fear of persecution for violating China’s
birth control policies. Accordingly, the IJ found that Shao had failed to establish
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past persecution or a well-founded fear of future persecution on account of any of
the five protected grounds enumerated by the INA. Because Shao failed to satisfy
the lower burden of proof required for asylum, the IJ found that he also failed to
satisfy the more stringent standard required to prove eligibility for withholding of
removal. The IJ also found that Shao had not shown his eligibility for CAT relief.
Shao filed a notice of appeal with the BIA. The BIA upheld the IJ’s
decision, although on different grounds, and dismissed the appeal. In its decision
dated December 2, 2008, the BIA noted that the Attorney General had recently
determined that the basis of Shao’s claim – that his wife had been forced to have an
abortion and to be sterilized – did not per se state a valid claim for asylum. The
BIA cited to Matter of J-S-, 24 I. &N. Dec. 520 (AG 2008), in which the Attorney
General instructed the IJs and the BIA to engage in the “case-by-case assessment
of whether an individual . . . who has not physically undergone a forced abortion or
sterilization procedure can demonstrate that (i) he ‘resisted’ China’s coercive
population control program, (ii) suffered or has a well-founded fear that he will
suffer persecution by the Chinese government, and (iii) can show that such
persecution was inflicted or that he has a well-founded fear that it would be
inflicted, ‘on account of’ his resistance to the coercive population control
program.” Applying this standard, the BIA found that Shao had provided “no
evidence that he engaged in conduct which constitutes resistance to China’s
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coercive population control program such that he has been or would be persecuted
upon return.” The BIA did not adopt the decision of the IJ and made no finding
regarding Shao’s credibility.
In his petition for review, Shao argues that substantial evidence does not
support the BIA’s determination that he is not entitled to asylum, withholding of
removal, or relief under the CAT.2
II. STANDARD OF REVIEW
We review only the decision of the BIA, except to the extent it expressly
adopts the IJ’s opinion. De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1006
(11th Cir. 2008). We review legal conclusions de novo. Lin v. U.S. Att’y Gen.,
555 F.3d 1310, 1314 (11th Cir. 2009). We review the BIA’s factual
determinations under the substantial evidence test and will leave them undisturbed
if “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Id. We cannot reverse factual findings unless the record
compels it; “the mere fact that the record may support a contrary conclusion is not
enough to justify a reversal of the administrative findings.” Ruiz v. U.S. Att’y
2
Shao also argues that the “BIA err[ed] in affirming the Immigration Judge’s finding that
Petitioner was not credible.” As discussed above, however, the BIA did not adopt the IJ’s
credibility finding. When the BIA issues a decision, we review only that decision except to the
extent that the BIA expressly adopts the IJ’s decision. De Santamaria v. U.S. Att’y Gen., 525
F.3d 999, 1006 (11th Cir. 2008). Because the BIA did not expressly adopt the IJ’s decision as to
Shao’s credibility, we may not review the issue.
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Gen., 440 F.3d 1247, 1255 (11th Cir. 2006) (quotation marks and citations
omitted).
III. ANALYSIS
At issue in this case is whether Shao has a well founded fear of persecution
on account of his political opinion, thereby entitling him to asylum, under the
following provision:
[A] person who has been forced to abort a pregnancy or to undergo
involuntary sterilization, or who has been persecuted for failure or
refusal to undergo such a procedure or for other resistance to a
coercive population control program, shall be deemed to have been
persecuted on account of a political opinion, and a person who has a
well founded fear that he or she will be forced to undergo such a
procedure or subject to such persecution for such failure, refusal, or
resistance shall be deemed to have a well founded fear of persecution
on account of political opinion.
8 U.S.C. § 1101 (a)(42)(B). Before 2008, the BIA interpreted this provision as
providing that the “past persecution of one spouse can be established by coerced
abortion or sterilization of the other spouse.” In re C-Y-Z-, 21 I. & N. Dec. 915,
917, 919 (BIA 1997) (en banc). In 2008, however, the Attorney General overruled
this interpretation and instructed the BIA to require the spouse of one forced to
undergo involuntary sterilization to independently show his resistance to the
coercive population control program and that he would be subject to persecution
on account of this resistance. Matter of J-S-, 24 I. & N. Dec. at 523. Our circuit
recently adopted this rule, concluding that the Attorney General’s interpretation of
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§ 1101 (a)(42)(B) was “reasonable and entitled to deference.” Yu v. U.S. Att’y
Gen., – F.3d –, 2009 WL 1457102, *5 (11th Cir. May 27, 2009). This court also
held that the BIA’s application of Matter of J-S- to cases that were open and on
direct review when Matter of J-S- was decided did not involve an improper
retroactive application of the law because the BIA was simply applying the
“Attorney General’s determination of what the law had always meant.” Id. at *5
(emphasis in original). “Once the Attorney General clarified the meaning of §
1101(a)(42)(B) in Matter of J-S-, that decision became the controlling
interpretation of the law and was entitled to full retroactive effect in all cases still
open on direct review, regardless of whether the events predated the Attorney
General’s decision.” Id.
In his petition for review, Shao argues that the BIA should have remanded
his case to the IJ for reconsideration because, at the time the administrative record
was developed, the law only required Shao to show that his wife had been forcibly
sterilized in order for him to be entitled to refugee status. Shao asserts that the
record shows that he “resisted” China’s coercive population control program
through his unsuccessful attempts to protect his wife from being forcibly sterilized,
but that he did not have a meaningful opportunity to develop this aspect of the
record. Shao notes that, in a footnote in Matter of J-S-, the Attorney General
contemplated that certain cases decided under the BIA’s former per se rule should
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be remanded in light of the change in the rule. 24 I. & N. Dec. at 543 n.15.
Accordingly, Shao asserts that justice demands that this matter be remanded so that
he may present additional evidence and the IJ may consider in the first instance
whether Shao has a well-founded fear of persecution on account of his political
opinion.
We disagree. In Matter of J-S-, the Attorney General noted that remand may
be appropriate, but limited this remedy to cases in which the record indicated that
the applicant may be entitled to relief if given a full opportunity to present
evidence:
Whether the Board and the courts should remand other cases for
reconsideration in light of this opinion depends on the particularized
facts of those cases. Where, as here, a case that was decided
principally on the basis of the per se rule appears to involve credible
evidence of threats or action against the applicant that might support
relief under the legal framework set forth herein, but that were not
adequately considered or developed before the Immigration Judge, it
may be an appropriate exercise of the Board’s discretion to order a
remand.
Id. In this case, Shao had a full opportunity to present evidence of past or future
persecution on account of his “other resistance” to China’s policies. At his
removal hearing, Shao told the full story of his wife’s forced abortion and
sterilization. Shao testified that he and his wife attempted to hide her unauthorized
pregnancy and that he “tried to stop” the Chinese officials from taking his wife to
be sterilized. Even assuming this conduct could be construed as “other resistance,”
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Shao did not claim or present any evidence indicating that he was persecuted in the
six years he remained in China after committing these alleged acts of resistance,
nor did he present evidence indicating that one who has resisted China’s family
planning policies has a well-founded fear of such persecution. Moreover, Shao
does not indicate what kind of evidence he would present if given the opportunity.
Although remand may be appropriate where an applicant has presented “credible
evidence of threats or action against the applicant that might support relief” which
were not “adequately considered or developed” before the IJ, we conclude that
remand is not required where, as in this case, there is nothing in the record to
indicate what other evidence of persecution an applicant could have offered, nor
does the applicant say. Accordingly, we also conclude that substantial evidence in
the record supports the BIA’s determination that Shao has not shown either past
persecution or a well-founded fear of future persecution on account of his
resistance to China’s family planning policy or any other protected ground.3 See
Yu, 2009 WL 1457102 (noting that to the extent hiding his wife from authorities to
avoid sterilization could considered “other resistance,” the record did not compel a
finding of persecution where Yu was never detained or physically harmed); Lin,
3
Although Shao testified at the hearing before the IJ that he would be imprisoned and
fined for leaving China illegally, he does not raise this claim in his petition. Accordingly, this
claim has been abandoned. See Sepulveda, 401 F.3d at 1228. Even if he had raised the issue,
“prosecution for leaving China illegally is not a statutorily protected ground entitling an alien to
asylum.” Yu, 2009 WL 1457102 at *7 n.4 (citing Lin, 555 F.3d at 1316).
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555 F.3d at 1316 (“[E]ven assuming Lin’s accidentally hitting the family planning
official and tearing up the fine amounted to ‘other resistance,’ he has not made the
requisite showing that he was persecuted on account of that resistance.”).
Inasmuch as the record does not compel a finding that Shao has a well-
founded fear of persecution on account of a protected ground, Shao cannot satisfy
the more stringent standard applicable to a claim for withholding of removal or
CAT relief. Lin, 555 F.3d at 1317.
IV. CONCLUSION
Because the evidence does not compel a finding that Shao suffered past
persecution or has a well-founded fear of future persecution on account of his
political opinion or any other protected ground, we DENY the petition.
PETITION DENIED.
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