Qiang Wang v. U.S. Attorney General , 395 F. App'x 670 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPT 15, 2010
No. 09-15959
JOHN LEY
Non-Argument Calendar
CLERK
________________________
Agency No. A098-239-767
QIANG WANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 15, 2010)
Before BARKETT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Qiang Wang filed an application for asylum and withholding of removal on
the ground that he feared persecution and torture for violating and resisting
China’s population-control policies. An immigration judge denied his asylum
application as untimely and denied his requests for withholding of removal under
the Immigration and Nationality Act (INA) and the Convention Against Torture
(CAT) on the merits. The Board of Immigration Appeals (BIA) dismissed his
subsequent appeal. Wang seeks judicial review of these decisions by way of
petition, which we dismiss in part and deny.
I
In 1999, Wang left China and illegally entered the United States. In 2008,
after the Department of Homeland Security initiated proceedings to have him
removed from the country, Wang filed an application for asylum and withholding
of removal under the INA and the CAT. Wang claimed that in 1990, his pregnant
wife had drowned in a river during an attempt to escape from government officials
enforcing a prohibition on unregistered pregnancies.1 Wang called one of the
officials responsible for her death a barbarian and filed an official complaint about
the incident. When another “family-planning” official later came to his house,
Wang’s refusal to pay a fine for the pregnancy led to a violent confrontation. In
anticipation of his arrest, Wang escaped to a nearby city, where he lived for nine
1
Wang’s traditional Chinese marriage was not officially recognized because the couple
did not (and, according to Wang, could not) register it with the appropriate authorities.
2
years until leaving the country. Although his older brother told him that the
officials came looking for him every few days, they never found him.
Once in the United States, Wang began dating another Chinese immigrant,
and despite the couple’s inability to obtain a marriage license, Wang considers her
his wife. The couple had a child in 2008, and they also live with the wife’s son
from a previous marriage in China. Wang testified that he fears sterilization and
other persecution in China on account of his resistance to China’s family-planning
policies, his failure to pay the fine for his first wife’s unregistered pregnancy, and
his new wife’s decision to have a second child with him.
II
An immigration judge (IJ) determined that Wang’s application for asylum
was untimely because it had not been “filed within 1 year after the date of the
alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). The BIA agreed
with the IJ. Wang argues that the IJ violated his constitutional right to due process
by failing to consider whether the 2008 birth of his child was a changed
circumstance sufficient to justify his delay in applying for asylum. See id.
§ 1158(a)(2)(D).2 The Attorney General responds that we must reject Wang’s due-
2
Although we lack jurisdiction to review ordinary determinations regarding the
timeliness of an asylum application, 8 U.S.C. § 1158(a)(3), we may nevertheless consider
constitutional claims and questions of law, id. § 1252(a)(2)(D).
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process claim because he had no protected liberty interest in asylum. Cf. Lonyem
v. U.S. Att’y Gen., 352 F.3d 1338, 1341–42 (11th Cir. 2003) (“To establish due
process violations in removal proceedings, aliens must show that they were
deprived of liberty without due process of law, and that the asserted errors caused
them substantial prejudice.”).
The Attorney General correctly notes that asylum is a form of discretionary
relief. See 8 U.S.C. § 1158(b)(1)(A) (“[T]he Attorney General may grant asylum
to an alien . . . .” (emphasis added)). And it is true that “the failure to receive
relief that is purely discretionary in nature does not amount to a deprivation of a
liberty interest.” Garcia v. Att’y Gen. of the United States, 329 F.3d 1217, 1224
(11th Cir. 2003). Nevertheless, “the Fifth Amendment entitles aliens to due
process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306
(1993). And “Congress and the executive have created, at a minimum, a
constitutionally protected right to petition our government for political asylum.”
Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1038 (5th Cir. Unit B 1982).3 We
therefore turn to the merits of Wang’s claim.
“Due process requires that aliens be given notice and an opportunity to be
heard in their removal proceedings.” Lapaix v. U.S. Att’y Gen., 605 F.3d 1138,
3
We are bound by decisions issued by Unit B panels of the former Fifth Circuit. Stein v.
Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982).
4
1143 (11th Cir. 2010). Wang’s contention that the IJ failed to consider the birth of
his child as a changed circumstance is, at base, a claim that the IJ denied him a
“full and fair hearing,” Ibrahim v. U.S. Immigration & Naturalization Service, 821
F.2d 1547, 1550 (11th Cir. 1987). But although the IJ had an obligation to give
reasoned consideration to Wang’s claims and the evidence supporting them, we do
not require immigration judges to address each argument and piece of evidence
separately. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006).
Here, the IJ duly noted the birth of Wang’s child and determined that his
asylum application was still untimely. Insofar as the Constitution is concerned,
Wang thus received the reasoned consideration to which he was entitled. Having
disposed of Wang’s due-process claim, we lack jurisdiction to review the BIA’s
untimeliness determination. 8 U.S.C. § 1158(a)(3). We therefore dismiss the
petition to the extent it requests judicial review of the decision denying Wang’s
application for asylum.
III
In considering Wang’s claims for withholding of removal, we review both
the BIA’s decision and those parts of the IJ’s decision adopted in its opinion.
Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). We review
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any legal conclusions de novo, but we may not reject factual findings unless they
are so unsupported by evidence that the record compels it. Id. at 1350–51.
Wang is only entitled to withholding of removal under the INA if his “life
or freedom would be threatened” in China because of his race, religion,
nationality, membership in a particular social group, or political opinion. 8 U.S.C.
§ 1231(b)(3)(A). In other words, he must demonstrate that if he is removed to
China, it is more likely than not that he will be persecuted on account of one of
those protected grounds. Tan, 446 F.3d at 1375. One way to satisfy this burden is
to prove past persecution, which gives rise to a rebuttable presumption that future
persecution is more likely than not. Id. For the purposes of this determination,
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).
Wang argues the BIA erred by finding that he was not likely to be
persecuted if removed to China. He first claims that he suffered past persecution
for his “other resistance to a coercive population control program” after
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complaining about his first wife’s death. Yet regardless of whether Wang’s
conduct was “other resistance,” he has not demonstrated that he was persecuted
for it. Because he was only “fined and threatened with arrest, but was neither
detained nor physically injured during his encounter with the family planning
officials,” Wang “suffered no harm amounting to persecution.” Lin v. U.S. Att’y
Gen., 555 F.3d 1310, 1316 (11th Cir. 2009).
Wang also argues that he is likely to be sterilized or otherwise persecuted in
China for violating its family-planning policies. His purported violations include
“reproductive behavior” outside a legal marriage, his failure to pay the fine for his
first wife’s unregistered pregnancy, and having two children—namely, his own
child and his new wife’s son from her previous marriage.4
We are mindful of our deferential standard of review for the BIA’s factual
determinations, and the record here does not compel us to reject its finding that
Wang failed to establish a sufficient likelihood of future persecution. First, we
agree with the BIA’s determination that Wang is unlikely to be held accountable
for his wife’s son from a previous marriage because he has neither legally married
the mother nor adopted the child. Second, although family-planning officials
continued to look for him until he left China, Wang lived unmolested for nine
4
That Wang’s new wife has two biological children is of no consequence here; we will
not impute her possible violations of China’s population-control program to him.
7
years in a city only a short distance from the place where he had violated local
population-control rules. Finally, the State Department reports submitted to the IJ
indicate that the typical response to a violation of China’s population-control
program in Fujian Province, where Wang lived, is economic sanctions. Although
“extraordinarily severe” fines may amount to persecution in some circumstances,
In re T—Z—, 24 I. & N. Dec. 163, 171 (BIA 2007), Wang has presented no
evidence that the fines he might face would subject him to “severe economic
disadvantage,” id. at 173. Without that evidence, we cannot reject the BIA’s
finding that Wang would not be likely to face persecution in China.
That leaves only Wang’s CAT claim for consideration. But because he
mentions that claim only in the procedural-history section of his brief—and
without any substantive discussion—he has abandoned it. See Yu v. U.S. Att’y
Gen., 568 F.3d 1328, 1330 n.1 (11th Cir. 2009). At any rate, an alien who fails to
satisfy the statutory requirements for withholding of removal under the INA rarely
qualifies for CAT relief. Compare 8 C.F.R. § 1208.16(b)(2) (“An applicant . . .
may demonstrate that his or her life or freedom would be threatened in the future
in a country if he or she can establish that it is more likely than not that he or she
would be persecuted . . . .”), with id. § 1208.16(c)(2) (“The burden of proof is on
the applicant for withholding of removal under [the CAT] to establish that it is
8
more likely than not that he or she would be tortured if removed to the proposed
country of removal.”). Because the record does not compel a finding that Wang is
likely to be persecuted in China, we cannot conclude that he is likely to suffer
torture covered by the CAT. Cf. id. § 1208.18(a)(2) (“Torture is an extreme form
of cruel and inhuman treatment and does not include lesser forms of cruel,
inhuman or degrading treatment or punishment that do not amount to torture.”).
IV
Because we lack jurisdiction to consider Wang’s asylum claim, we dismiss
that part of his petition. We deny his requests for withholding of removal.
PETITION DISMISSED IN PART and DENIED IN PART.
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