Guo Lin v. U.S. Attorney General ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 02, 2007
No. 07-11259 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A97-955-228
GUO LIN,
a.k.a. Ming Chi Cheung,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 2, 2007)
Before BIRCH, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Guo Lin petitions pro se for review of the Board of Immigration Appeals
(“BIA”) decision dismissing his appeal of the denial by the Immigration Judge
(“IJ”) of his applications for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”) and relief under the United Nations
Convention Against Torture (“CAT”). Lin contends that he qualifies for derivative
protection as a non-legally married spouse under the family planning provision of
8 U.S.C. § 1101(a)(42). We deny in part and dismiss in part.
I. BACKGROUND
Lin, a native and citizen of the Fujian Province of the People’s Republic of
China, entered the United States at the Miami International Airport on 12 August
2004. On that day, he was served with a Notice to Appear (“NTA”), charging him
with removability, under 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an alien who is not in
possession of valid entry documents. Lin admitted to the allegations in the NTA
and conceded removability as charged.
During his initial immigration interview, Lin stated that he left China in
March or April of 2003 because he had a problem with a security officer which led
to the issuance of warrants against him and his cousin. AR at 292-93. Lin also
stated that his family’s home had been destroyed, so that he did not know where
they were. He reported that he was not married, and he made no mention of any
girlfriend. Id. at 292.
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Later, Lin requested asylum, withholding of removal, and protection under
CAT. In his application, Lin asserted that he had been “persecuted by the coercive
family planning policy in China.” Id. at 313. More specifically, he reported the
following: He and his girlfriend had begun living together in early 2002, but never
legally married because they were too young. Although they and their families
considered the relationship to be marital, they did not publicize it as such and he
referred to her in public as his girlfriend. In September 2002, family planning
officials came to their home to take his pregnant girlfriend away for an abortion.
Lin tried to stop them, but the officials beat him with their fists and threatened to
arrest him. Thereafter, Lin, his parents, and his girlfriend decided that she and Lin
should leave China to escape persecution. He was to leave first, and she was to
follow. Lin asserted that he feared returning to China because the people who lent
his parents the money to smuggle him out of China would torture him. Lin also
stated that the Chinese government would torture, beat, jail, and fine him, because
he had enlisted the aid of smugglers to help him leave China and did not have the
proper documentation for his stay abroad.
Prior to the asylum hearing, the government submitted the United States
Department of State’s 2004 China: Profile of Asylum Claims and Country
Conditions (“Profile”) and 2003 China: Country Report on Human Rights
Practices (“Country Report”). The Profile reports that the minimum age for
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marriage in China is 22 for males and 20 for females and that, although cohabiting
couples having unauthorized children are likely to be charged “social
compensation fees,” there is no provision that they be detained or jailed. Id. at
116. The Profile reported that the central government’s policy prohibits the use of
physical coercion to compel persons to submit to abortion or sterilization although
other forms of coercion might be employed. The Country Report described
China’s family planning program similarly. The Profile also stated that returned
illegal emigrants from the United States are rarely fined, are not abused, and are
only detained long enough for relatives to arrange for their travel home.
At his October 2005 asylum hearing, Lin testified to the following: He was
born in China and his parents still live in the house in which he was raised. He is
not married but lived with his girlfriend in China. He came to the United States
because he was oppressed by China’s family planning policy. Someone reported
to officials that his girlfriend was pregnant and, as a result, officials came to their
home to take her away for a forced abortion. Lin told the officials that they were
going to be married and asked them not to perform the abortion. Lin tried to
protect his girlfriend, but was beaten by the officials. Thereafter, the abortion was
performed at the local hospital.
Lin first testified that he visited his girlfriend each day in the hospital for a
week. Id. at 81. Then, upon further questioning, he stated that he did not know
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where his girlfriend was, and he admitted that he had not seen her since the
officials had come for her and that he had not visited her in the hospital thereafter.
Id. at 82. He attempted to clarify his testimony by stating that he had visited his
girlfriend in the hospital “before the death occurred.” Id. Lin further explained
that, after the abortion, he hid at a friend’s house two hours away in Fuzhou City,
because he knew he was wanted by the family planning office. Lin asserted that
his parents decided that he could not stay in China, so they borrowed around
$17,000 to pay a smuggler. Id. at 83-84. He left China in March 2003 and
traveled through four countries before arriving in the United States.
Lin testified that he was “politically oppressed” in China. Id. at 85. He
enumerated three fears: (1) going to jail for using an illegal visa; (2) being fined
by the family planning office; and (3) pressure to return all the borrowed money to
the smugglers. Upon cross-examination, Lin admitted that he did not possess any
documents to prove his relationship with his girlfriend and that he could not find
the document proving that his girlfriend had had an abortion. When asked to
explain the inconsistency between the story he told at his initial interview and that
contained in his application for asylum, he said only “No, it was me who was
injured by a security officer out of state.” Id. at 90. The IJ specifically observed,
in his decision, that there was no apparent problem with interpretation at any point
during the hearing. When, the government then asked, “are you saying that you
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did not tell the airport officials there was a warrant for your arrest in China for you
and your cousin?,” Lin replied, “They only have a warrant for me.” Id.The IJ denied the application. In his decision, the IJ noted that Lin had
admitted he was not married and inconsistently testified about whether he saw his
girlfriend after she was taken away for the abortion. Additionally, the IJ noted that
Lin had claimed to fear only a fine under China’s family planning program and that
his fear of imprisonment stemmed from his illegal departure from China. Finally,
the IJ observed that Lin had failed to clarify the inconsistency between his asylum
application and his initial interview in which he claimed to have left China because
of a security officer and related warrant. After summarizing the law regarding
asylum, withholding of removal, and CAT protection, the IJ concluded that Lin’s
allegations did not demonstrate “any reasonable possibility that he would be
subject to persecution, or harmed or threatened if returned to China at this time
based on any protected ground.” Id. at 34. The IJ also made an adverse credibility
finding, pointing out that, in addition to other inconsistent testimony, Lin had not
even proved that he had a girlfriend, much less one who had been affected by the
family planning policy. Because, for all these reasons, Lin had failed to satisfy the
lower burden of proof required for asylum, the IJ concluded that Lin had also
failed to meet the higher burdens of proof for withholding of removal and CAT
relief.
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Through counsel, Lin appealed the IJ’s decision. In his notice of appeal, Lin
argued that the IJ had “erred as a matter of law in denying [his] request for political
asylum.” Id. at 20. He further argued that his testimony was credible and
consistent. In his brief, Lin again contended that he qualified for “asylum” based
on his girlfriend’s forced abortion and that his testimony was credible. Id. at 11,
12. At no point during his appeal to the BIA, did Lin argue that he had otherwise
resisted China’s family planning program or mention withholding of removal or
CAT relief.
The BIA dismissed Lin’s appeal, finding “no error in the [IJ]’s
determination that Lin failed to meet the burdens of proof relevant to his claims of
persecution and torture, even assuming that he testified credibly.” Id. at 2. The
BIA agreed that Lin
“did not demonstrate past persecution or a well-founded fear of
persecution because his former girlfriend underwent an involuntary
abortion in September 2002, because he was struck by family
planning officials who came to his parents’ home, because he believes
he could be fined by family planning officials, because he departed
illegally from China, or because his family owes a large debt as
payment for his smuggling fees.”
Id. In rendering its decision, the BIA specifically relied on In re S-L-L-, 24 I.&N.
Dec. 1 (BIA 2006) (en banc). Lin filed a timely petition for review of the BIA’s
decision.
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II. DISCUSSION
A. Withholding of Removal and CAT Relief
As an initial matter, we must determine which issues are properly before us.
We “may review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right.’” 8 U.S.C. § 1252(d)(1);
see also Sundar v. I.N.S., 328 F.3d 1320, 1323 (11th Cir. 2003). Accordingly, we
lack jurisdiction to review claims not raised before the BIA. Amaya-Artunduaga v.
U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). We have
decided that we lack jurisdiction to review such a claim even if the BIA has
addressed it sua sponte. Id. at 1250-51.1 Because Lin failed to appeal the IJ’s
rulings with respect to withholding of removal and CAT relief to the BIA, he has
failed to exhaust his administrative remedies as to those claims and we have no
jurisdiction to review them.2
1
In its opinion, the BIA recognized that the IJ’s decision also addressed withholding of
removal and CAT relief, but only generally discussed the IJ’s “determination that the respondent
failed to meet the burdens of proof relevant to his claims of persecution and torture.” AR at 2.
Accordingly, it is not clear whether the BIA even addressed withholding of removal or CAT relief
sua sponte.
2
Although we hold pro se pleadings “to a less stringent standard than pleadings drafted by
attorneys,” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam), Lin
was counseled before the BIA and does not receive the benefit of that liberal construction with
respect to this issue.
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B. Asylum
Lin did properly appeal the IJ’s decision regarding his asylum claim to the
BIA and thus, we do have jurisdiction to review that issue. When the BIA issues a
decision, “[w]e review only [that] decision, except to the extent that [the BIA]
expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). Here, the BIA has issued its own decision without expressly
adopting any portion of the IJ’s decision. We review the BIA’s legal
determinations de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th
Cir. 2004).
The Secretary of Homeland Security or the Attorney General has discretion
to grant asylum, if an alien meets the INA’s definition of a “refugee.” 8 U.S.C.
§ 1158(b)(1). A “refugee” is:
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
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 asylum applicant carries the burden of proving statutory refugee status.
8 U.S.C. § 1158(b)(1)(B)(i); see also Al Najjar, 257 F.3d at 1284. To establish
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asylum eligibility, the alien “must, with specific and credible evidence, establish,
(1) past persecution on account of a statutorily protected ground or (2) a
well-founded fear of future persecution on account of a protected ground.” Mejia
v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007); 8 C.F.R. § 208.13(a),
(b). “Demonstrating such a connection requires the alien to present specific,
detailed facts showing a good reason to fear that he or she will be singled out for
persecution on account of” a statutory factor. Al Najjar, 257 F.3d at 1287
(quotations and citation omitted). To establish a well-founded fear, “an applicant
must demonstrate that his or her fear of persecution is subjectively genuine and
objectively reasonable.” Al Najjar, 257 F.3d at 1289. “[P]ersecution is an
extreme concept, requiring more than a few isolated incidents of verbal harassment
or intimidation, and . . . mere harassment does not amount to persecution.”
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (per curiam)
(quotations and citation omitted).
On the other hand, persons forced to undergo abortions or involuntary
sterilizations, or persecuted for refusing to undergo such procedures, or those
persecuted for other resistance to a coercive population control program are
deemed “persecuted on account of political opinion.” 8 U.S.C. § 1101(a)(42)(B).
Similarly, a “well founded fear” of such persecution satisfies the requirement. Id.The BIA has approved the extension of refugee protection under this section to
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applicants whose spouses have suffered forced abortion or sterilization. See In re
C-Y-Z, 21 I.&N. Dec. 915, 918-19 (BIA 1997) (en banc). However, it has also
limited that protection to spouses in legally recognized marriages. In re S-L-L-, 24
I.&N. Dec. 1, 7-10 (BIA 2006) (en banc). We have concluded that, assuming the
extension of protection under this section to spouses is a reasonable interpretation
of the statute, the BIA’s decision to deny derivative protection to boyfriends or
fiancés of women subject to forced abortion or sterilization is also reasonable.
Yang v. U.S. Att’y Gen., 494 F.3d 1311, 1317 (11th Cir. 2007) (per curiam).
Lin contends that he qualifies as a persecuted spouse, under 8 U.S.C.
§ 1101(a)(42)(B) because his girlfriend, to whom he considered himself
unofficially married, was forced to undergo an abortion. Lin concedes that he was
not legally married to his girlfriend and has presented only his testimony as proof
of her existence and of the forced abortion. Although Lin argues that the BIA
unreasonably interpreted § 1101(a)(42)(B) to exclude non-legally married spouses
from protection under the family planning provisions, we have already rejected
Lin’s argument, see Yang, 494 F.3d at 1317, and he has offered no authority to
undermine that holding.
Although he makes no clear argument and cites no related authority, Lin
does mention his attempted resistance to the family planning officials who came to
his house. Liberally construing Lin’s pro se brief, we now also review the BIA’s
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decision as to whether his being struck by family planning officials while
attempting to prevent the abortion amounts to persecution in response to “other
resistance” and thereby provides sufficient basis for a well-founded fear of future
persecution. See 8 U.S.C. § 1101(a)(42)(B). According to Lin, his fear of
returning to China, with respect to the family planning authorities, is not that they
would beat him, but that they may fine him for having violated the policy. He has
not asserted that any such fine would be particularly exorbitant. We have already
indicated that a single fine for failure to comply with family planning policy does
not amount to persecution. See Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1203
(11th Cir. 2005); see also In re J-W-S, 24 I.&N. Dec. 185, 194-95 (BIA 2007)
(BIA finds a fine for illegal departure would not amount to persecution).
Accordingly, we agree with the BIA that Lin’s fear of a fine is insufficient to lend
him refugee status.
Lin’s status as the boyfriend of a woman forced to undergo an abortion and
his fear of being fined by the family planning authorities are his only arguments
related to a statutorily protected factor. Without a statutory factor as a basis for
refugee status, Lin cannot establish asylum eligibility. 8 U.S.C. §§ 1101(a)(42(A),
1158(b)(1); 8 C.F.R. § 208.13(a), (b).
Finally, Lin also contends that the IJ’s decision “fail[ed] to contain
necessary finding of facts and application of governing law.” Petitioner’s Br. at
12
20. This contention is irrelevant. In this case, we review only the decision of the
BIA because the BIA did not expressly adopt any portion of the IJ’s opinion. If, in
view of Lin’s pro se status, we read the argument liberally, applying it to the BIA
opinion, it is still without merit. The BIA made its decision “assuming that [Lin]
testified credibly.” AR at 2. Thus, citing appropriate law, it made only a legal
determination that the facts to which Lin testified did not satisfy the requirements
for refugee status. As we have explained, we find no error in that determination.
III. CONCLUSION
Lin petitions for review of the BIA’s dismissal of his appeal of the denial by
the Immigration Judge (“IJ”) of his applications for asylum, withholding of
removal, and CAT relief. Because Lin failed to exhaust his administrative
remedies as to withholding of removal or CAT relief, we lack jurisdiction and
DISMISS his petition as to those issues. Because Lin was never legally married to
the woman he alleges suffered a forced abortion under China’s family planning
program, he cannot qualify for derivative protection under the family planning
provisions of INA § 101(a)(42)(B), 8 U.S.C. § 1101(a)(42)(B). He provides no
other sufficient basis for refugee status. Accordingly, we DENY his petition as to
asylum.
DISMISSED IN PART, DENIED IN PART
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