Hua Yao Yang v. United States Attorney General , 538 F. App'x 873 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15955
Non-Argument Calendar
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Agency No. A078-698-312
HUA YAO YANG,
Petitioner,
versus
UNITED STATES ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 26, 2013)
Before CARNES, Chief Judge, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Hua Yao Yang, a Chinese national, seeks review of the Board of
Immigration Appeals’ final order affirming the Immigration Judge’s denial of his
application for asylum, withholding of removal, and relief under the United
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Nations Convention Against Torture (CAT). 1 Yang contends that he suffered past
persecution in China based on his wife’s coerced abortion. He also contends he
has established a well-founded fear of future persecution based on the likelihood
that he will be forcibly sterilized upon his return to China.
I.
Yang illegally entered the United States in 1999 after he allegedly learned
that family planning officials in China planned to abort his fiancée’s unborn child.
Although he managed to flee China successfully, local officials apparently caught
his fiancée — then six months pregnant — and caused her to miscarry by inducing
early labor. Yang’s fiancée eventually fled to the United States in 1998 and Yang,
who had made it only as far as Mexico by then, joined her in 1999. The two were
married in New York in 2000 and Yang’s wife gave birth to their first child in the
United States later that year. 2
1
Yang does not develop any arguments on appeal regarding the denial of CAT relief.
“When an appellant fails to offer argument on an issue, that issue is abandoned.” Sepulveda v.
U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005). Even if we were to consider that
claim, it would still fail because, as this opinion will explain, Yang has not met the lower
standard required for the grant of asylum. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1288
n.4 (11th Cir. 2005).
2
Yang contends that he entered into a traditional, or unofficial, marriage with his fiancée
in 1998, before the forced abortion occurred, but the IJ found that he was first married in the
United States in 2000. That finding is adequately supported by the record, and we are bound to
defer to it under the substantial evidence standard governing our review. See Al Najjar v.
Ashcroft, 257 F.3d 1262, 1283–84 (11th Cir. 2001).
2
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In 2000 the former Immigration and Naturalization Service commenced
removal proceedings against Yang on the ground that he was in the United States
without being admitted or paroled. Conceding removability, Yang sought asylum,
withholding of removal, and CAT relief.
In 2002 the IJ denied Yang’s applications for relief. Addressing the asylum
claim, the IJ found that Yang’s application was time barred because he failed to
demonstrate by clear and convincing evidence that he had filed for asylum within
one year of his arrival in the United States. Even if the application had not been
barred, the IJ determined that Yang lacked credibility and failed to establish either
past persecution or a well-founded fear of future persecution. Because Yang failed
to qualify for asylum, the IJ concluded that he necessarily failed to meet the more
stringent requirements for withholding of removal and CAT relief. The BIA
summarily affirmed the IJ’s ruling.
In 2004 Yang successfully moved to reopen his case and the IJ found that
changed circumstances –– the birth of his second child and the impending birth of
his third child –– permitted Yang to overcome the one-year time limit for seeking
asylum. The IJ then considered new evidence purporting to show that Yang and
his wife faced persecution in China “ranging from forced abortion and sterilization
to the denial of government benefits to [their] children.” Despite this new
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evidence, the IJ again concluded that Yang had failed to testify credibly or carry
his burden of proof and therefore denied relief.
The BIA affirmed the IJ’s decision but later granted Yang’s motion to
remand his case for consideration of new evidence: a letter from the family
planning office of his hometown instructing him to report for sterilization within
one week of returning to China. Finding that the letter had not been sufficiently
authenticated, the IJ accorded it only minimal weight and concluded that while it
may have been sufficient to make Yang subjectively fearful of future persecution,
it was not enough to raise such fear in an objective person. As a result, the IJ again
found that Yang had failed to establish a well-founded fear of persecution.
Even so, the IJ certified Yang’s case to the BIA. The BIA adopted the IJ’s
2002 determinations regarding past persecution and agreed with the IJ’s findings
about the authenticity of the family planning document. The BIA concluded that
Yang was ineligible for relief because he failed to establish a well-founded fear of
future persecution.
The BIA also rejected Yang’s final effort to avoid removal by appealing for
prosecutorial discretion. Yang had contended that a developmental disorder
suffered by one of his sons entitled him to termination of removal proceedings as a
“low priority removal case” under the Secretary of the Department of Homeland
Security’s memorandum of August 18, 2011. The BIA rejected that argument,
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noting that Yang had not demonstrated how his son’s disability made his case “low
priority.” The BIA also remarked that the Department of Homeland Security had
vigorously prosecuted Yang’s removal to date and was unlikely to grant him
favorable treatment now.
II.
“Where the BIA issues a decision, we review that decision, except to the
extent that it expressly adopts the IJ’s opinion.” Chen v. U.S. Att’y Gen., 463 F.3d
1228, 1230 (11th Cir. 2006). “Insofar as the BIA adopts the IJ’s reasoning, we
review the IJ’s decision as well.” Id. Here, we review both the BIA’s and IJ’s
decisions on asylum and withholding of removal because the BIA adopted the IJ’s
reasoning. We review only the BIA’s decision on prosecutorial discretion because
only the BIA considered that issue.
We review administrative factual findings, including determinations on
eligibility for asylum and withholding of removal, under a “highly deferential”
substantial evidence test and “must affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Al Najjar, 257 F.3d at 1283–84 (quotation marks omitted). We will
reverse only if the record compels reversal. Fahim v. U.S. Att’y Gen., 278 F.3d
1216, 1218 (11th Cir. 2002).
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An alien seeking asylum “must, with specific and credible evidence,
establish (1) past persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion; or (2) a well-founded fear of
future persecution on account of a statutorily-protected ground.” Chen, 463 F.3d at
1231. The Immigration and Nationality Act recognizes forced abortion and
involuntary sterilization as grounds to prove past and future persecution:
[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 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 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). Under that provision, it is possible for one spouse to claim
persecution when the other undergoes a forced abortion or involuntary sterilization.
However, such a claim will succeed only if the spouses are legally married at the
time, Yang v. U.S. Att’y Gen., 494 F.3d 1311, 1318 (11th Cir. 2007), and if the
spouse who does not physically undergo the procedure proves that he resisted it
and endured personal persecution as a result, Yu v. U.S. Att’y Gen., 568 F.3d
1328, 1332–33 (11th Cir. 2009).
A well-founded fear of future persecution also requires an applicant to prove
both a “subjectively genuine and objectively reasonable” fear. Silva v. U.S. Att’y
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Gen., 448 F.3d 1229, 1236 (11th Cir. 2006). “The subjective component is
generally satisfied by the applicant’s credible testimony that he or she genuinely
fears persecution.” Al Najjar, 257 F.3d at 1289. “[T]he objective prong can be
fulfilled either by establishing past persecution or that he or she has a good reason
to fear future persecution.” Id. (quotation marks omitted).
In this case, the BIA and IJ reasonably found that Yang had failed to
establish either past persecution or a well-founded fear of future persecution, as
required to be eligible for asylum. Yang himself admitted he and his current wife
were not legally married at the time of her 1998 abortion, and the record shows
that he did not personally endure persecution as a result of resisting that procedure.
For those reasons, he failed to prove that he suffered past persecution on account of
a statutorily protected ground. See Yang, 494 F.3d at 1318; Yu, 568 F.3d at 1332–
33.
Yang also failed to establish a well-founded fear of future persecution.
Yang claimed that his American-born children would be denied Chinese benefits,
that he would suffer economic harm for violating family planning rules, and that he
would be forcibly sterilized upon return to his native country. He has offered an
assortment of evidence in support of his contentions, including family planning
regulations from Fujian province, an affidavit from an American demographer, and
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a letter from Chinese officials requiring him to report for sterilization within a
week of his return.
Reviewing that evidence, the BIA and IJ reasonably found that Yang did not
have a well-founded fear of persecution. As to the fears that his children will be
denied benefits and that he will suffer economic harm, the record supports the
BIA’s and IJ’s determination that his fears were neither subjectively genuine nor
objectively reasonable. Yang offered Chinese regulations and the demographer’s
affidavit to support his claims, but the regulations were unauthenticated and the
affidavit was not entitled to much weight because the demographer had no
personal knowledge of conditions in China. The BIA and IJ reasonably discounted
these documents. Even if Yang’s fears had been subjectively genuine and
objectively reasonable, the record supports the BIA’s and IJ’s alternative
determination –– based on the Department of State’s 2006 Country Report on
China –– that enforcement of family control polices in Fujian province did not rise
to the level of persecution. See Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239,
1243 (11th Cir. 2004) (finding that the BIA is entitled to “rely heavily” on State
Department evidence because it may be the best source of information regarding
conditions in a foreign country).
As to Yang’s assertion that he would be forcibly sterilized, the BIA and IJ
found that he genuinely fears sterilization as a result of the letter he received from
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family planning officials. However, the record supports their determination that
this fear is not objectively reasonable. According to Yang, he sought out the
attention of the very officials he supposedly feared in order to get that letter and its
lack of authentication casts serious doubt on its genuineness. As a result, the BIA
and IJ reasonably discounted the letter’s value, especially in light of the State
Department’s 2007 Country Report for China, which noted widespread fraud and
fabrication of such documents in Yang’s home province of Fujian. See Reyes-
Sanchez, 369 F.3d at 1243. 3
Finally, Yang argues that his case warrants prosecutorial discretion. The
executive branch has nearly absolute discretion on whether to prosecute a removal
case. See Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 1655 (1985).
“This broad discretion rests largely on the recognition that the decision to
prosecute is particularly ill-suited to judicial review” because it depends on factors
such as government enforcement priorities. United States v. Shaygan, 652 F.3d
1297, 1314 (11th Cir. 2011) (quotation marks omitted). The decision on whether
to prosecute is not appropriate for judicial consideration and is committed to the
discretion of the Attorney General and his agents. Reno v. American–Arab Anti–
Discrimination Comm., 525 U.S. 471, 489–92, 119 S.Ct. 936, 945–947 (1999)
3
Because Yang did not meet the standard of proof for asylum, he cannot meet the higher
standard for withholding of removal. See Sepulveda, 401 F.3d at 1232–33 (explaining that the
standard for withholding of removal is more stringent than the standard for asylum relief).
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(explaining the importance of inherent prosecutorial discretion as to whether to
bring removal proceedings).
PETITION DENIED.
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