Yi Song Jiang v. U.S. Attorney General , 426 F. App'x 706 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 10-13810 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
MAY 6, 2011
________________________
JOHN LEY
CLERK
Agency No. A098-900-328
YI SONG JIANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 6, 2011)
Before TJOFLAT, CARNES and BLACK, Circuit Judges.
PER CURIAM:
Yi Song Jiang, a native and citizen of China, seeks review of the Board of
Immigration Appeals’ (BIA’s) order affirming the Immigration Judge’s (IJ’s)
denial of asylum, 8 U.S.C. § 1158(a), and termination of a previous grant of
withholding of removal, 8 U.S.C. § 1231(b)(3). Jiang asserts three issues on
appeal, which we address in turn. After review, we deny Jiang’s petition.
I. BACKGROUND
Jiang filed an application for asylum and withholding of removal based on
his political opinion on March 14, 2005. On May 1, 2006, an IJ in New York
found that Jiang had not established that he applied for asylum within one year of
entering the United States, and pretermitted his application for asylum. However,
because Jiang established that his wife was forcibly sterilized, the New York IJ
concluded he was entitled to withholding of removal under In re C-Y-Z-, 21 I.&N.
Dec. 915 (BIA 1997).
Jiang appealed to the BIA the New York IJ’s adverse-credibility finding, as
well as the IJ’s alleged failure to consider all of the evidence or to give him an
opportunity to explain any inconsistencies. The BIA remanded to the Immigration
Court for a new hearing before a different IJ “solely for a determination of
[Jiang’s] eligibility for . . . asylum.” An IJ granted Jiang’s motion for a change of
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venue, and transferred his removal proceedings to the Immigration Court in
Orlando, Florida.
At the beginning of the removal proceedings in Orlando on April 29, 2009,
the IJ stated “[s]o we all agree that the respondent already has been granted
withholding, so now the only issue is can he increase that to asylum.” The IJ
rendered an oral decision denying Jiang’s application for asylum. The IJ found
that Jiang was not credible based on inconsistencies between his 2006 testimony
in New York and the testimony adduced in the April 29, 2009, proceeding. The IJ
further explained that, even if Jiang were credible, he would deny the application
because Jiang did not establish his eligibility for asylum. Although the IJ denied
Jiang’s application for asylum, he refused to disturb the New York IJ’s grant of
withholding of removal because the BIA’s remand order directed him only to
determine whether Jiang was eligible for asylum.
The Government appealed the IJ’s refusal to terminate the New York IJ’s
grant of withholding of removal. The Government asserted that when the New
York IJ decided Jiang’s application in 2006, the BIA interpreted the INA as
providing per se refugee status to the spouse of a person who had been forcibly
sterilized. Subsequently, in 2008, the Attorney General overruled the BIA’s
interpretation and established that the spouse of a person who had been forcibly
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sterilized was not automatically eligible for refugee status. The Government
asserted that Jiang’s new and inconsistent testimony “reopened” his case, giving
the IJ authority to reconsider the previous grant of withholding of removal.
In his response, Jiang stated he was appealing the IJ’s denial of his
application for asylum, and that the IJ’s adverse-credibility finding was clearly
erroneous. He further asserted that substantial evidence did not support the IJ’s
finding that he had not established past persecution or a well-founded fear of
future persecution. Finally, Jiang contended the BIA had qualified and limited its
remand to the IJ solely to the issue of his eligibility for asylum.
The BIA dismissed Jiang’s appeal, sustained the Government’s appeal,
terminated Jiang’s grant of withholding of removal, and ordered him removed.
The BIA concluded the IJ’s adverse credibility finding was not clearly erroneous
because the finding was based on discrepancies between his 2009 and 2006
testimony. Further, even if Jiang’s testimony was credible, to the extent that his
asylum claim was based on the forced sterilization of his wife, such a claim was
foreclosed by the Attorney General’s decision in Matter of J-S-, 24 I.&N. Dec. 520
(A.G. 2008). The BIA then concluded the New York IJ’s grant of withholding of
removal was not a final disposition of Jiang’s case because he was never ordered
removed. Because Matter of J-S- provided its holding was to be applied to all
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non-final cases, the BIA was obliged to apply Matter of J-S- and to vacate Jiang’s
grant of withholding of removal.
II. DISCUSSION
A. Adverse credibility determination
Jiang first contends the BIA’s adverse-credibility finding1 was clearly
erroneous. “We review administrative fact findings, including credibility
determinations, under the highly deferential substantial evidence test.” Todorovic
v. U.S. Att’y Gen., 621 F.3d 1318, 1323 (11th Cir. 2010) (quotations omitted).
Accordingly, “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. at 1324 (quotations omitted). We, therefore, “will reverse the agency’s
findings only if the evidence compels a reasonable fact finder to find otherwise.”
Id. (quotations omitted).
The REAL ID Act of 2005 provides that an adverse-credibility
determination may be based on inconsistencies that do not go “to the heart of the
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Because Jiang’s application
was filed before these amendments became effective on May 11, 2005, they do not
1
Where, as here, the BIA issues its own opinion, we review only that opinion, except to
the extent the BIA expressly adopts the IJ’s reasoning. Todorovic v. U.S. Att’y Gen., 621 F.3d
1318, 1323 (11th Cir. 2010).
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apply to his claims. See Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1049 n.7
(11th Cir. 2009).
As in Shkambi, we need not resolve “whether adverse credibility
determinations in pre-REAL ID Act cases must be based on inconsistencies that
go to the heart of the claim because the inconsistencies identified by the IJ and the
BIA in this case relate directly to [Jiang’s] claims of persecution.” Id.Inconsistencies between Jiang’s 2006 account of how and when he arranged to
leave China and his 2009 version of those events relate directly to his claim of past
persecution and a well-founded fear of future persecution. Jiang’s most recent
claims of persecution are premised on his fear that a loanshark will report him to
the Chinese government, and that he will be arrested, imprisoned, beaten, and
fined as a consequences of the loanshark’s actions. In his earlier testimony,
however, Jiang explicitly denied procuring funds from a loanshark to finance his
hasty departure. Thus, the issue of whether Jiang actually owes money to a
loanshark relates directly to his claim of a well-founded fear of persecution.
Substantial evidence supports the BIA’s adverse-credibility determination.
Contrary to Jiang’s contention, his 2009 testimony–that he traveled from Mexico
to California by boat, that his neighbor helped him locate a “snakehead,” and that
he boarded a boat for Mexico the same day that the snakehead contacted
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him–flatly contradicted and undermined his 2006 testimony–that he ventured into
California in the trunk of a car, that he found a snakehead through his aunt, and
that he left China eight days after contacting the snakehead. Substantial evidence
in the form of numerous and blatant omissions and inconsistencies between
Jiang’s 2006 and 2009 testimony supported the BIA’s credibility determination.
B. Past Persecution or Well-Founded Fear of Future Persecution
Jiang next contends he demonstrated past persecution because the Chinese
government fined him for violating its family-planning law. He further asserts he
established a well-founded fear of future persecution based on his fear of being
fined, imprisoned, and beaten should he return to China.2
We review the BIA’s conclusions of law de novo while reviewing findings
of fact for substantial evidence. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
1350 (11th Cir. 2009). The government has the discretion to grant asylum to any
alien meeting the definition of a “refugee” contained in the INA. See id. at 1351.
The statute defines a refugee as:
any person who is outside any country of such person's nationality or,
in the case of a person having no nationality, is outside any country in
2
Jiang also states in two places, without elaboration, that he established “other
resistance” to China’s family-planning policy. Because “[p]assing reference to issues are
insufficient to raise a claim for appeal,” Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1145 (11th
Cir. 2010), Jiang has not properly raised his “other resistance” claim on appeal.
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which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion.
8 U.S.C. § 1101(a)(42)(A). The burden of proof is on the applicant to establish his
status as a refugee. Kazemzadeh, 577 F.3d at 1351. “To establish asylum based
on past persecution, the applicant must prove (1) that he was persecuted, and
(2) that the persecution was on account of a protected ground.” Id. (alteration
omitted). The potential for prosecution and punishment in the form of, inter alia,
heavy fines, torture, and imprisonment for leaving a country illegally is not a
statutorily protected ground entitling an alien to asylum. Lin v. U.S. Att’y Gen.,
555 F.3d 1310, 1316-17 (11th Cir. 2009).
We have concluded that persecution “is an extreme concept,” Silva v. U.S.
Att’y Gen., 448 F.3d 1229, 1237 (11th Cir. 2006), and the fact government
officials have fined an applicant and attempted to arrest him is insufficient to
establish persecution. Yu v. U.S. Att’y Gen., 568 F.3d 1328, 1334 (11th Cir.
2009). The BIA also has concluded that economic hardship must be extreme in
order to amount to persecution, and, thus, “[g]overnment sanctions that reduce an
applicant to an impoverished existence may amount to persecution.” In re T-Z, 24
8
I.&N. Dec. 163, 174 (BIA 2007); cf. Barreto-Clara v. U.S. Att’y Gen., 275 F.3d
1334, 1340 (11th Cir. 2001) (providing “employment discrimination which stops
short of depriving an individual of a means of earning a living does not constitute
persecution”).
To establish a well-founded fear of future persecution an applicant must
establish “a fear of persecution in his country of nationality on account of a
protected ground, a ‘reasonable possibility’ of suffering persecution if he returns
to that country, and that he is unable or unwilling to return because of his fear.”
Kazemzadeh, 577 F.3d at 1352 (citing 8 C.F.R. § 208.13(b)(2)(i)). We have
rejected an applicant’s claim that his wife’s abortion and sterilization and his
payment of a fine established a well-founded fear of future persecution. Yu, 568
F.3d at 1334.
As discussed above, substantial evidence supports the BIA’s
adverse-credibility determination. Nevertheless, even if the BIA had found
Jiang’s testimony to be credible, Jiang still would have failed to establish his
eligibility for asylum or withholding of removal. To the extent Jiang’s claim is
premised on the fact that he paid a fine in the past, he has failed to establish
eligibility for asylum because being fined is insufficient to establish persecution.
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Further, we have previously rejected the argument that an applicant’s wife’s
sterilization and his payment of a fine establish a well-founded fear of future
persecution. Jiang also has failed to demonstrate that any future fine would reduce
him to an impoverished existence because the record is devoid of evidence of his
financial situation. Accordingly, Jiang has failed to establish past persecution or a
well-founded fear of future persecution. Having failed to demonstrate eligibility
for asylum, it follows that Jiang also was ineligible for withholding of removal.3
C. Termination of Withholding of Removal
Finally, Jiang contends the BIA erred in terminating his grant of
withholding of removal. He maintains the parties stipulated before the second IJ
that the first IJ’s grant of withholding of removal was not to be disturbed on
remand. He also asserts the BIA mistakenly believed that the change in the law
wrought by Matter of J-S- occurred subsequent to the hearing before the second IJ.
Jiang summarily concludes that it was fundamentally unfair for the BIA to
overturn its prior decision, in which it instructed the second IJ to consider only the
asylum issue.
3
To qualify for withholding of removal under the INA, an applicant must show that, if
returned to his country, it is more likely than not that his life or freedom would be threatened on
account of race, religion, nationality, membership in a particular social group, or political
opinion. 8 U.S.C. § 1231(b)(3). “Where an applicant is unable to meet the well-founded fear
standard of asylum, he is generally precluded from qualifying for either asylum or withholding of
removal.” Kazemzadeh, 577 F.3d at 1352 (quotation and alteration omitted).
10
The INA provides that,
[f]or purposes of determinations under this chapter, 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)(B). The BIA originally interpreted this provision as
providing an applicant “eligibility for asylum by virtue of his wife’s forced
sterilization.” In re C-Y-Z-, 21 I.&N. Dec. at 918, overruled by Matter of J-S-, 24
I.&N. Dec. at 521. However, as we explained in Yu, “[i]n 2008, the Attorney
General overruled the BIA’s interpretation of § 1101(a)(42)(B) in C-Y-Z- . . . to
the extent th[at] case[] established automatic spousal eligibility.” Yu, 568 F.3d at
1331. We agreed “that § 1101(a)(42)(B) does not confer automatic refugee status
on an individual merely because his or her spouse (or unmarried partner)
underwent . . . sterilization.” Id. at 1332. Accordingly, we held that “persecution,
or the fear thereof, must be personally endured by the applicant.” Id. at 1333.
In Yu, we further held the Attorney General’s interpretation of
§ 1101(a)(42)(B) did not change the law, but rather explained “what the law had
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always meant” because it simply “clarified the correct interpretation of the law.”
Id. (quotation and emphasis omitted). Thus, application of the Attorney General’s
decision to an open case pending on direct review was not an impermissible
retroactive application of a new law. Id.
First, contrary to Jiang’s argument, the BIA accurately stated that Matter of
J-S- was decided after the first IJ issued his order. Next, to the extent Jiang relies
on an alleged stipulation regarding the grant of withholding of removal, Jiang
appeals to misconstrue the record. Further, Jiang fails to argue the BIA
erroneously interpreted the law when it concluded the New York IJ’s grant of
withholding of removal was not a final order in his case and that Matter of J-S-
was therefore fully applicable to his case. Instead, Jiang concludes his argument
with a perfunctory statement the BIA’s termination of his grant of withholding of
removal was unfair. Jiang’s unelaborated contention is devoid of citations to
statutory or case law, the Due Process Clause or due process jurisprudence, or to
the record. It is therefore insufficient to raise a due process challenge to the BIA’s
action. See Lapaix, 605 F.3d at 1145.
III. CONCLUSION
Substantial evidence supports the BIA’s adverse-credibility finding.
Substantial evidence also supports that Jiang did not demonstrate past persecution
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or a well-founded fear of future persecution. Further, the BIA did not err in
terminating Jiang’s grant of withholding of removal. Thus, we deny Jiang’s
petition.
PETITION DENIED.
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