Liu Yanni v. U.S. Attorney General ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10885
Non-Argument Calendar
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Agency No. A201-084-315
LIU YANNI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 1, 2017)
Before TJOFLAT, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Liu Yanni 1 seeks review of the Board of Immigration Appeal’s (“BIA”)
final order affirming the Immigration Judge’s (“IJ”) denial of her application for
asylum pursuant to the Immigration and Nationality Act (“INA”) § 208, 8 U.S.C. §
1158, withholding of removal pursuant to INA § 241(b)(3), 8 U.S.C. § 1231(b)(3),
withholding of removal under the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), 8 C.F.R.
§ 208.16(c), and cancellation of removal under INA § 240A(a), 8 U.S.C.
§ 1229b(a). She argues that the BIA in finding the untimeliness of her application
because she demonstrated both changed circumstances permitting a late application
and a well-founded fear of future persecution. She also contends that substantial
evidence did not support the BIA’s decision that she failed to present corroborating
evidence supporting her withholding of removal claim. Finally, she argues that
substantial evidence did not support the BIA’s determination that her removal
would not cause exceptional and extremely unusual hardship to her children.
Upon review of the record and the parties’ briefs, we deny Liu’s petition in
part and grant it in part. Because she failed to challenge the IJ’s determination
regarding the untimeliness of her asylum application before the BIA, she did not
exhaust her administrative remedies. As a result, we lack jurisdiction to review her
asylum claim. Additionally, substantial evidence did not support the BIA’s
1
The record refers to the petitioner inconsistently as “Liu” or “Yanni.” This opinion
refers to her by her family name, Liu.
2
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decision that the IJ did not clearly err by denying her withholding of removal claim
based on her failure to provide corroborating evidence that showed a clear
probability of persecution if she were removed because the IJ and the BIA ignored
important evidence of persecution. Because the BIA did not review it, we lack
jurisdiction to review the IJ’s credibility determination. Finally, we lack
jurisdiction to review the BIA’s discretionary decision denying Liu’s application
for cancellation of removal. We remand to the BIA for a decision regarding
withholding of removal that considers all of Liu’s evidence and, if necessary,
reviews the IJ’s adverse credibility determination.
I.
We review our own subject-matter jurisdiction regarding the BIA’s decision
about the timeliness of an application for asylum de novo. Ruiz v. Gonzales, 479
F.3d 762, 765 (11th Cir. 2007).
An application for asylum must be filed within one year of entering the
United States. INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B). However, untimely
applications may be considered in the event of changed circumstances that
materially affect the applicant’s eligibility for asylum or extraordinary
circumstances relating to delay in filing the asylum application. 8 U.S.C.
§ 1158(a)(2)(D); see also 8 C.F.R. § 208.4(a)(5) (identifying events that qualify as
extraordinary circumstances). We previously decided that INA § 208(a)(3), 8
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U.S.C. § 1158(a)(3), divests us of jurisdiction to review decisions of whether an
alien complied with the one-year time limit, or whether extraordinary
circumstances were present to justify untimely filing of the asylum application.
Gonzales, 479 F.3d at 765.
Because the INA requires that a petitioner exhaust her administrative
remedies, we lack jurisdiction to consider issues that the petitioner did not raise
before the BIA. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th
Cir. 2006). Challenges raising due process issues are assertions of procedural
errors requiring exhaustion. Id.
Outside of the immigration context, we may consider an issue not raised
before the district court if doing so prevents a miscarriage of justice, a decision left
to our discretion. Roofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns,
Inc., 689 F.2d 982, 989-90 (11th Cir. 1982).
We lack jurisdiction to review the BIA’s decision as to the timeliness of
Liu’s asylum claim because she failed to raise the issue before the BIA. Amaya-
Artunduaga, 463 F.3d at 1251. The fact that she raises a due process issue does
not excuse her failure to exhaust her administrative remedies. Id. Liu’s argument
that we may consider arguments not raised in the court below is not applicable
here, because the INA’s jurisdictional bar to review prevents us from exercising
any discretion to consider new arguments. Cf. Roofing & Sheet Metal Servs., Inc.,
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689 F.2d at 989-90. Even if she previously exhausted her administrative remedies,
we lack jurisdiction to review the BIA’s decision as to timeliness, including its
decision that no extraordinary circumstances justified the late filing. Gonzales,
479 F.3d at 765. Thus, we deny Liu’s petition as to her asylum claim.
II.
We review the BIA’s decision as the final judgment, unless the BIA
expressly adopted the IJ’s decision. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d
1341, 1350 (11th Cir. 2009). Where the BIA agrees with the IJ’s reasoning, we
review the decisions of both the BIA and the IJ to the extent of the agreement. Id.
In a petition for review of a BIA decision, we review conclusions of law de
novo. Id. We review factual determinations, including an alien’s statutory
eligibility for withholding of removal, under the substantial evidence test. Seck v.
U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011). Pursuant to this test, we
view the record evidence in the light most favorable to the agency’s decision and
draw all reasonable inferences in favor of that decision. Id. We must affirm the
BIA’s decision if it is supported by reasonable, substantial, and probative evidence
on the record considered as a whole and may reverse the BIA’s findings of fact
only when the record compels a reversal. Id. The mere fact that the record may
support a contrary conclusion is not enough to justify a reversal of the
administrative findings. Id. An IJ’s finding about the likelihood of an individual
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suffering harm like forcible sterilization is part of the factual basis for the decision
under review. Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1312 (11th Cir. 2013).
To qualify for withholding of removal, an applicant must establish that her
“life or freedom would be threatened in [his] country because of the alien’s race,
religion, nationality, membership in a particular social group, or political opinion.”
INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). The applicant must show that it is
more likely than not that she will be persecuted on account of a protected ground if
returned to her home country. Cendejas Rodriguez v. U.S. Att’y Gen., 735 F.3d
1302, 1308 (11th Cir. 2013). A person who has a well-founded fear that he or she
will be forced to undergo involuntary sterilization, or be subject to persecution for
failure, refusal, or resistance to undergo such a procedure, or for other resistance to
a coercive population control program shall be deemed to have a well-founded fear
of persecution on account of political opinion. INA § 101(a)(42)(B), 8 U.S.C.
§ 1101(a)(42)(B). An extraordinarily severe fine may be so severe as to amount to
persecution. Matter of T-Z-, 24 I. & N. Dec. 163, 171 (BIA 2007). However, such
a fine must cause a severe economic disadvantage such that the fine reduces the
applicant to an impoverished existence. Wu v. U.S. Att’y Gen., 745 F.3d 1140,
1156 (11th Cir. 2014).
An applicant’s testimony, if credible, may be sufficient to sustain the burden
of proof for withholding of removal without corroboration. Tan v. U.S. Att’y Gen.,
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446 F.3d 1369, 1376 (11th Cir. 2006). A decision-maker must provide a reasoned
explanation why the applicant failed to meet her burden of proof despite credible
testimony and other evidence. Id. at 1377. Although the BIA need not discuss
every piece of evidence presented, it must consider all the evidence submitted by
the applicant. Seck, 663 F.3d at 1368. Remand is necessary when the record
suggests that the BIA failed to consider important evidence in that record. Id. In
Seck, we remanded where the BIA determined that a country report indicated that
the practice of female genital mutilation was not common in the applicant’s home
country, but the BIA failed to consider evidence that the practice was more
common among the applicant’s ethnic group. Id. at 1367-68.
Fears of future sterilization by Chinese nationals based on China’s one-child
policy must be evaluated on a case-by-case basis. Wu, 745 F.3d at 1155. To
demonstrate an objectively reasonable well-founded fear, an alien must show:
(1) proof of the details of the family planning policy relevant to her; (2) the alien
violated the policy; and (3) the violation of the family planning policy would be
punished in the local area in a way that would give rise to an objective fear of
future persecution.2 Id.
2
In an unpublished opinion, we found that a Chinese applicant failed to demonstrate a well-
founded fear of forcible sterilization or other harm that would rise to the level of persecution in
China based on his violation of the one-child policy. Huang v. U.S. Att’y Gen., 346 F. App’x
463, 467 (11th Cir. 2009) (unpublished). Based on the 2005 through 2007 country reports on
China, which were substantively similar to the 2011 report, we agreed with the BIA that the
applicant had not presented sufficient evidence to support a well-founded fear of persecution. Id.
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Here, because the BIA did not adopt the IJ’s decision or rely on its
reasoning, we review the BIA’s opinion as the final judgment. Because the BIA
assumed Liu’s credibility and did not review the IJ’s adverse credibility
determination, we likewise review only the BIA’s decision regarding whether Liu
provided sufficient corroborating evidence.
Substantial evidence does not support the BIA’s determination that Liu
failed to demonstrate that she was more likely than not to suffer persecution based
on her violation of China’s one-child policy. Thus, we grant her petition for
review, vacate the BIA’s order, and remand to the BIA for a decision that
considers all of the evidence presented.3 The BIA determined that Liu failed to
provide corroborating evidence that she would face persecution in China,
“including whether it is more likely than not that she will face a severe fine upon
her removal to China for violating that country’s population control measures.”
However, Liu submitted a State Department country report that stated, “[t]he law
requires each person in a couple that has an unapproved child to pay a social
compensation fee, which can reach 10 times a person’s annual disposable income.”
The country report stated that although China’s national laws prohibit forced
sterilization, local officials often pressured couples with two children to undergo
3
Though the BIA also considered whether Liu would face persecution in Malaysia, she does not
raise this issue on appeal. Likewise, Liu does not challenge the BIA’s denial of her application
for withholding of removal under CAT. Therefore, she has waived these issues. Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
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sterilization. It also stated that certain provinces enforced regulations requiring
women who violate family-planning policies to terminate their pregnancies, and
that Shaanxi province required unspecified “remedial measures” for unauthorized
pregnancies. The country report corroborated Liu’s testimony that she would face
hefty fines and possibly sterilization if she returned to China. It also corroborated
her testimony—which the BIA assumed was credible—that her brother was forced
to separate from his second child in order to prevent the government from learning
of him. The IJ correctly stated that the country report indicated an “easing” of the
one-child policy, but then incorrectly stated that Liu had not provided any
documentation to support her belief that she would face a heavy fine.
Liu’s failure to identify a sufficiently similarly-situated individual who
suffered persecution was the basis for neither the BIA nor the IJ’s decision. The
government’s contention that she did not identify another returnee from the United
States who was persecuted for violating the one-child policy therefore cannot be
the substantial evidence that supports the BIA’s decision. Moreover, her testimony
indicated that her brother was subject to persecution despite his child being born in
Hong Kong. Though the brother is not perfectly similarly-situated, his experience
may be similar enough to justify Liu’s argument that she faces a clear probability
of persecution.
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However, the only corroborating evidence relevant to her province in
particular that Liu presented was the country report’s statement that Shannxi
province permitted “remedial measures” for unauthorized pregnancies. Moreover,
she did not present any evidence that children born in the United States are treated
as a violation of the one-child policy. Arguably, Liu failed to show that the details
of the one-child policy would apply to her. Wu, 745 F.3d at 1155. Unlike in Seck,
Liu did not provide specific evidence about the likelihood of persecution in her
local area. Seck, 663 F.3d at 1367–68. In particular, the country report does not
appear to support her contention that she would be sterilized. Cf. Huang, 346 F.
App’x at 467.
Liu likely did not provide sufficient evidence to show a clear probability of
future persecution. Therefore, she may be unable to meet her burden for
withholding of removal based on the evidence she provided. Nevertheless,
substantial evidence did not support the BIA’s determination that she failed to
provide corroborating evidence in support of her testimony. Liu’s contention that
she would face large fines that were potentially sufficient to constitute persecution
was supported by at least some corroborating evidence that the BIA and IJ ignored.
As in Seck, the BIA failed to consider important evidence supporting Liu’s
testimony that she would personally face persecution. Seck, 663 F.3d at 1367–68.
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Because Liu provided the country report, which stated that Chinese law
requires each person in a couple with an unapproved child under China’s one-child
policy to pay a “social compensation fee” that can reach ten times a person’s
annual disposable income, the record compels the conclusion that the BIA’s
statement that she provided no corroborating evidence for her claim that she would
face fines that amount to persecution was clear error. Assuming, as the BIA did,
that her testimony was credible, the BIA’s determination that the IJ did not err in
finding that there was no clear probability of future persecution was not supported
by substantial evidence. We therefore grant Liu’s petition as to her withholding of
removal claim, vacate the BIA’s decision as to her withholding of removal claim,
and remand to allow the BIA to consider the evidence presented by Liu that was
not discussed. We lack jurisdiction to review the IJ’s credibility finding, because
the BIA’s decision did not address it. However, on remand, the BIA may need to
revisit the IJ’s credibility determination if it determines that Liu provided sufficient
corroborating evidence to support her testimony.
III.
We review our own subject-matter jurisdiction de novo. Martinez v. U.S.
Att’y Gen., 446 F.3d 1219, 1221 (11th Cir. 2006).
An alien may avoid removal from the United States and adjust her status to
that of a lawful permanent resident if she: (1) has continuous physical presence in
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the United States for ten years; (2) is of good moral character; (3) has not
committed one of a number of specified offenses; and (4) shows that her citizen or
lawful permanent resident spouse, parent, or child will suffer “exceptional and
extremely unusual” hardship. INA § 240A(b), 8 U.S.C. § 1229b(b).
We lack jurisdiction to review the BIA’s purely discretionary determination
that a petitioner failed to satisfy INA § 240A(b)(1)(D), 8 U.S.C.
§ 1229b(b)(1)(D)’s exceptional and extremely unusual hardship requirement for
cancellation of removal. Martinez, 446 F.3d at 1221. We have jurisdiction only to
review constitutional claims or questions of law. Id.
Here, we lack jurisdiction to review the BIA’s denial of Liu’s application for
cancellation of removal, because it was based on its purely discretionary
determination that she failed to show exceptional and extremely unusual hardship.
Though Liu states that the BIA did not apply the law correctly, her only arguments
on appeal are that the BIA incorrectly weighed the evidence in its hardship
determination, which is not a constitutional claim or a question of law. We lack
jurisdiction to review that determination. Therefore, we deny Liu’s petition as to
her cancellation of removal claim.
We GRANT Liu’s petition as to the denial of her application for withholding
of removal and DENY her petition as to her applications for asylum and
cancellation of removal. We VACATE IN PART the BIA’s decision as to Liu’s
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withholding of removal claim and REMAND for proceedings consistent with this
opinion.
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