Wen Jing Gao v. U.S. Attorney General , 441 F. App'x 731 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-13977 SEP 30, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A093-408-709
WEN JING GAO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 30, 2011)
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Wen Jing Gao, a native and citizen of China, petitions for review of the
order by the Board of Immigration Appeals (“BIA”) affirming the decision of the
Immigration Judge (“IJ”). The IJ’s decision denied asylum and withholding of
removal.1 No reversible error has been shown; we deny the petition.
We review the BIA’s decision in this case because the BIA did not
expressly adopt the IJ’s decision. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001) (noting that we review the BIA’s decision; but “[i]nsofar as the
[BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well”). We
review de novo legal determinations of the BIA. Id. Factual determinations are
reviewed under the “highly deferential” substantial evidence test; and we must
“affirm the . . . decision if it is supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Forgue v. U.S. Att’y Gen., 401
F.3d 1282, 1286 (11th Cir. 2005) (citation omitted). To reverse a fact
determination, we must conclude “that the record not only supports reversal, but
compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
An alien may obtain asylum if she is a “refugee,” that is, a person unable or
unwilling to return to her country of nationality “because of persecution or a well-
founded fear of persecution on account of” a protected ground, including political
opinion. 8 U.S.C. §§ 1101(a)(42)(A); 1158(a)(1), (b)(1). The asylum applicant
1
The IJ also denied relief under the Convention Against Torture. Because Gao did not
challenge this denial in her appeal to the BIA, she failed to exhaust her administrative remedies;
and we lack jurisdiction to consider this issue. See Amaya-Artunduaga v. U.S. Att’y Gen., 463
F.3d 1247, 1250-51 (11th Cir. 2006).
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bears the burden of proving statutory “refugee” status with specific and credible
evidence. Forgue, 401 F.3d at 1287. Government-ordered forced sterilization or
persecution for refusing to undergo such a procedure qualifies as “persecution on
account of political opinion.” 8 U.S.C. § 1101(a)(42)(B).
Gao sought asylum based on her fear of future persecution for violating
China’s population control policies because she gave birth to two children while
living in the United States -- a daughter in 2004 and a son in 2007. She alleged
that, if she returned to China, she would be sterilized forcibly and required to pay
a fine of 40,000 yuan, or approximately $6000.
The IJ denied relief, concluding that Gao failed to demonstrate that she
would be sterilized forcibly. The IJ explained that -- although Gao provided
various documents about the local family planning policies of her and her
husband’s rural villages in the Fujian Province -- a 2007 State Department
document, entitled “China: Profile of Asylum Claims and Country Conditions”
(“2007 Profile”), reported that such documents were subject to widespread
fabrication and fraud. Relying on portions of the 2007 Profile and the State
Department’s Country Report on Human Rights Practices in China for 2007
(“2007 Country Report”), the IJ noted that there had been no cases of forced
abortion or sterilization in the Fujian Province in the last ten years, and population
control policies were more relaxed in rural areas, permitting couples to have a
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second child when their first child was a girl. Based on the totality of the
evidence, the IJ determined that Gao failed to establish her eligibility for asylum.
The IJ also rejected Gao’s claim that she would be persecuted economically if she
returned to China, concluding that the alleged $6000 fine would not amount to
persecution.
The BIA agreed with the IJ’s assessment, and concluded that the IJ’s
findings of fact were not clearly erroneous. Upon a de novo review, the BIA
determined that Gao’s credible testimony and supporting documents failed to
establish an objectively reasonable fear of forced sterilization.2 The BIA also
agreed with the IJ’s conclusion that Gao failed to establish an objectively
reasonable possibility that the proposed fine would amount to economic
persecution.
2
We reject Gao’s claim that the BIA erred when it reviewed the IJ’s conclusion de novo
and reweighed the evidence. After reviewing the IJ’s factual findings for clear error, the BIA
was entitled to reweigh the evidence and consider de novo whether the facts established a well-
founded fear of persecution. See 8 C.F.R. § 1003.1(d)(3)(ii) (providing that the BIA “may
review questions of law, discretion, and judgment and all other issues in appeals from decisions
of immigration judges de novo.”); Matter of A-S-B-, 24 I.&N. Dec. 493, 496-97 (BIA 2008)
(concluding that “[i]n determining whether established facts are sufficient to meet a legal
standard, such as ‘well-founded fear,’ the [BIA] is entitled to weigh the evidence in a manner
different from that accorded by the [IJ], or to conclude that the foundation for the [IJ’s] legal
conclusions was insufficient or otherwise not supported by the evidence of record.”).
4
On appeal, Gao argues that she established a well-founded fear of future
persecution.3 To show a well-founded fear of future persecution, Gao had to
establish that her fear both was “subjectively genuine and objectively reasonable.”
Al Najjar, 257 F.3d at 1289. To show that she had an objectively reasonable fear
based on violation of China’s population control policy, she had to establish the
following facts: (1) “the details of the family planning policy relevant to [her]
case”; (2) that she violated the policy; and (3) that the violation “would be
punished in the local area in a way that would give rise to an objective fear of
future persecution.” In re J-H-S-, 24 I.&N. Dec. 196, 198-99 (BIA 2007).
After review, we cannot say that the record compels the conclusion that Gao
has an objectively reasonable fear of forced sterilization. Gao submitted
certificates from the village committees of her and her husband’s villages
describing the local family planning policies. According to the 2007 Profile, such
certificates are subject to “widespread fabrication and fraud.” Nevertheless, even
if we assume that the certificates state the relevant local family planning policies,
3
Gao also contends that, in denying her application, the IJ and the BIA considered the
evidence arbitrarily and selectively. We disagree. Both the BIA and IJ considered the affidavits
and other documents Gao offered as evidence, and made a case-by-case determination that the
record as a whole did not establish a reasonable possibility that she would be sterilized forcibly
or subjected to fines rising to the level of persecution if she returned to China. Because the BIA
and IJ gave “reasoned consideration” to the evidence and explained their bases for discounting
portions of it, they were not required to address specifically each piece of evidence that Gao
presented. See Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006).
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and establish that Gao violated such policies, they do not establish that she would
be sterilized forcibly as a result. The certificates state that, if a couple gives birth
to a girl -- as in Gao’s case -- they may obtain permission to have a second child
four years later, after which one of the parents must be sterilized. Neither
certificate describes the punishment for having a second child early, having a
second child without permission, or refusing to be sterilized following the birth of
the second child. The 2007 Country Report and 2007 Profile, however, indicate
that, in the Fujian Province, economic sanctions -- instead of physical force or
coercion -- were the main means of securing compliance with the local family
planning policies.
Gao also submitted letters from her husband’s sister and cousin -- both
residents of the Fujian Province -- each stating that she had been sterilized forcibly
after the birth of her second child, and that Gao would be sterilized forcibly if she
returned to China. The BIA concluded correctly that these letters were written by
interested witnesses who were not subject to cross-examination and that, although
there was evidence that both women had been sterilized, there was no
corroborating evidence that the sterilizations were performed involuntarily.4
4
It should also be noted that Gao’s sister-in-law’s situation is inapplicable here because
her first-born child was a boy, and thus, according to the local family planning policies, she was
prohibited from having a second child altogether.
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Substantial evidence also supports the finding that Gao failed to show a
well-founded fear of economic persecution. Fines may amount to persecution if
they cause a “severe economic disadvantage,” considering the alien’s net worth,
other sources of income, and the conditions of the local economy. See In re T-Z-,
24 I.&N. Dec. 163, 173 (BIA 2007). To meet the severe economic disadvantage
standard, the fine should reduce the alien “to an impoverished existence.” Id. at
174. Although Gao testified that she and her husband were poorly educated and
would have difficulty earning money and paying a fine if returned to China, she
also testified that she had paid a smuggler $68,000 to enter the United States. In
the light of this evidence, we are not compelled to conclude that a fine of only
$6000 would create a “severe economic disadvantage” such that it would rise to
the level of economic persecution.
Substantial evidence supports the BIA’s decision that Gao was unentitled to
asylum; and we are not compelled to reverse the BIA’s decision. Gao’s failure to
establish eligibility for asylum forecloses her eligibility for withholding of
removal. See Forgue, 401 F.3d at 1288 n.4.
PETITION DENIED.
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