Hui Zhen Jiang v. U.S. Attorney General , 433 F. App'x 769 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 6, 2011
JOHN LEY
No. 10-15248 CLERK
Non-Argument Calendar
________________________
Agency No. A099-559-557
HUI ZHEN JIANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 6, 2011)
Before HULL, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Hui Zhen Jiang, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (BIA) decision affirming the Immigration Judge’s
(IJ) denial of asylum and withholding of removal under the Immigration and
Nationality Act (INA), and relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT).
After a thorough review of the record, we deny the petition.1
I. Background
Jiang entered the United States in September 1999 without possessing a
valid entry document. The Immigration and Naturalization Service (INS) later
issued a Notice to Appear, charging her as removable on this basis. In 2005, Jiang
filed the present application for asylum and withholding of removal on the basis of
her political opinion, indicating that she was from Fujian Province in China, was
married, and feared being forcibly sterilized upon return to China.2
At the removal hearing, Jiang testified that she had two children born in the
United States and that, under China’s family planning policy, she would be
required to undergo sterilization if she returned to China.3 Her children would be
1
Jiang received a stay of removal while this petition is pending.
2
The IJ concluded that the birth of Jiang’s second child established the changed
circumstances necessary to excuse the untimely asylum application.
3
The IJ did not make an adverse credibility finding; therefore, we treat Jiang’s testimony
as credible. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1257 (11th Cir. 2007).
2
required to be registered under the household registry system and would be
considered Chinese citizens based on travel documents she had acquired for them,
even though they had obtained American passports. Jiang also feared she would
face a fine, which she could not afford, if she was returned to China.
In support of her application for relief from removal, Jiang provided the
following materials to document the conditions inside China: (1) a 2007 report
from U.S. Department of State profiling asylum claims and country conditions for
China (2007 Asylum Profile); (2) a 2008 U.S. Department of State Country Report
on Human Rights for China (2008 Country Report); (3) certificates from Chinese
governmental agencies and statements from her father-in-law, mother, cousin, and
sister-in-law confirming the one-child policy; and (4) the children’s birth
certificates. She also submitted numerous articles about China’s family planning
policy, Congressional testimony condemning enforcement of the one-child policy,
and the testimony of alleged expert John Aird.
The IJ denied asylum, withholding of removal, and CAT relief. The IJ
discussed the documents that Jiang provided and found them unreliable, giving
greater weight to the 2007 Asylum Profile. The IJ found that, according to the
2008 Country Report, the 2007 Asylum Profile, and other materials in the record,
the most Jiang would face upon return to China was being required to pay a social
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support fee. The IJ also discounted the affidavits by Jiang’s cousin and sister-in-
law. Based on the foregoing, the IJ found that Jiang failed to establish that the
Chinese government would force her to undergo sterilization because she had two
children, and also found that there was no proof that Jiang had even violated the
Chinese government’s family planning policy. Because Jiang could not establish
her eligibility for asylum, the IJ also denied withholding of removal and CAT
relief.
Jiang appealed and the BIA affirmed, concluding that the IJ did not use the
wrong burden of proof and that the IJ properly considered the evidence, in light of
the IJ’s “lengthy discussion” of the evidence in its decision. The BIA reviewed de
novo the IJ’s determination that Jiang failed to meet her burden for relief. The
BIA discussed its three-prong test from Matter of J-H-S-, 24 I&N Dec. 196, 198
(BIA 2007), aff’d by Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008), and found
that Jiang failed to meet its requirements. The BIA determined that much of
Jiang’s documentary evidence did not address current family planning policies,
was general in nature, and consisted of documents analyzed in previous BIA
decisions. The BIA further explained that the evidence established no uniform
policy regarding the implementation of China’s family planning policy with
respect to children born outside of China. The BIA also discounted the letters
4
from Jiang’s cousin and sister-in-law, which stated that they were forcibly
sterilized for violating the family planning policy, because the incidents described
were too remote, did not establish current country conditions, came from
interested witnesses who were not subject to cross-examination, did not establish
that their sterilizations amounted to persecution, and came from individuals who
were not similarly situated to Jiang because they did not have United States-born
children. The BIA discounted the statements from Jiang’s mother and father-in-
law, which stated that they had confirmed the policy and consequences with the
local family planning offices, because the affirmations were made by interested
witnesses not subject to cross-examination and the local town and village
documents were unauthenticated, not originals, were unsupported by independent
evidence, and the writers were not available for examination. Furthermore, to the
extent Jiang relied on certificates issued by village committees, the BIA gave
greater weight to the 2007 Asylum Profile, which stated that certificates issued by
such a committee should be deemed ineffective. The BIA also determined that
any fines Jiang would face upon return to China did not rise to the level of
persecution.
Jiang now petitions this court for review, arguing that the BIA failed to
properly consider and review all of the evidence and applied an incorrect standard
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when it reviewed the IJ’s rulings. Finally, she argues that the agency
determinations are factually and legally unsupported. We address each issue in
turn.
II. Discussion
A. Consideration of Evidence
Where, as here, the BIA issued its own opinion, but “explicitly agreed with
several findings of the immigration judge, we review the decisions of both the
Board and the immigration judge as to those issues.” Ayala v. U.S. Att’y Gen., 605
F.3d 941, 948 (11th Cir. 2010).
The IJ must consider all evidence introduced by the applicant. Tan v. U.S.
Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006). Where the IJ has given
reasoned consideration to the petition and made adequate findings, we will not
require that it address specifically each claim the petitioner made or each piece of
evidence the petitioner presented. Id. (citation omitted). The IJ must “consider
the issues raised and announce its decision in terms sufficient to enable [us] to
perceive that it has heard and thought and not merely reacted.” Id. (citations
omitted).
In this case, we conclude that the BIA and IJ properly reviewed the
evidence. The IJ considered and discussed Jiang’s evidence at length, and the IJ’s
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discussion showed that it had considered the evidence and had offered a reasoned
conclusion as to how to weigh it. See Tan, 446 F.3d at 1374. The IJ, and by
extension the BIA, did not need to address each piece of evidence that had been
presented, as long as the agency made adequate findings and gave reasoned
consideration to the petition. Id.To the extent Jiang’s claim is based on the BIA discounting certain pieces
of evidence, her argument is unavailing. The BIA discounted the letters from
Jiang’s cousin and sister-in-law, in part, because the letters came from individuals
who were not similarly situated to Jiang, as they did not have U.S.-born children.4
Furthermore, to the extent Jiang relied on certificates issued by village
committees, the BIA noted that the 2007 Asylum Profile stated that certificates
issued by such a committee should be deemed ineffective. The BIA was entitled
to give greater weight to the State Department Reports. Djonda v. U.S. Att’y Gen.,
514 F.3d 1168, 1175 (11th Cir. 2008).
Therefore, the record demonstrates that the IJ made adequate findings and
exercised reasoned consideration, the BIA did not err by determining that the IJ
had done so, and the BIA properly considered the evidence presented.
4
The BIA also noted that the affirmations (1) were made by interested witnesses;
(2) came from witnesses who were not subject to cross-examination; and (3) were unsupported
by independent evidence. We do not agree with these bases for rejecting the evidence.
7
B. Application of the Correct Standard
Under the regulations, the BIA reviews an IJ’s factual findings for clear
error. 8 C.F.R. § 1003.1(d)(3)(i). But the BIA may review questions of law de
novo. 8 C.F.R. § 1003.1(d)(3)(ii). The application of the law to the facts, such as
reviewing whether the facts establish a well-founded fear of future persecution, is
subject to de novo review. Matter of A-S-B-, 24 I&N Dec. 493, 497 (BIA 2002).5
Contrary to Jiang’s argument, the BIA did not apply the wrong standard of
review. The BIA properly considered whether Jiang established a well-founded
fear of future persecution under a de novo review. Establishing a well-founded
fear does not involve a simple factual determination; rather, it involves the
application of the law to the facts.6 Therefore, we conclude that the BIA applied
the correct legal standard.
C. Asylum
We review agency conclusions under the substantial-evidence test, except to
the extent that the BIA’s decision is based upon a legal determination, in which
5
Although Jiang argues that the Third Circuit has abrogated Matter of A-S-B-, see Huang
v. U.S. Att’y Gen. 620 F.3d 372 (3d Cir. 2010), we note that the case has not been abrogated in
the asylum context. In any event, the Third Circuit’s decision is not binding on this court.
6
The Attorney General has interpreted the regulations as granting the BIA authority to
review de novo the application of the law to the facts. See 67 Fed. Reg. 54878, 54890 (Aug. 26,
2002). We conclude that this interpretation is neither plainly erroneous nor inconsistent with the
regulation. See Auer v. Robbins, 519 U.S. 452, 461 (1997).
8
case review is de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817-18
(11th Cir. 2004). The substantial-evidence test is highly deferential, and the BIA’s
conclusions will be affirmed if “supported by reasonable, substantial, and
probative evidence” based upon the record as a whole. Forgue v. U.S. Att’y Gen.,
401 F.3d 1282, 1286 (11th Cir. 2005) (citation and quotation omitted). Under the
substantial-evidence test, to reverse the BIA’s decision, we must find that the
record compels a contrary conclusion, not merely that it supports one. Adefemi v.
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).7 We cannot consider
facts not raised in the administrative forum or reassess the evidence from scratch.
Id.An alien who arrives in or is present in the United States may apply for
asylum. 8 U.S.C. § 1158(a)(1). The Attorney General or the Secretary of the
Department of Homeland Security has the discretion to grant asylum if the alien
meets the INA’s definition of a “refugee.” 8 U.S.C. § 1158(b)(1)(A). A “refugee”
is:
any person who is outside any country of such person’s nationality
. . . 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
7
Because Jiang filed her asylum application after May 11, 2005, it is governed by the
REAL ID Act. Pub.L. No. 109-13 § 101, 119 Stat. 302; Tang v. U.S. Att’y Gen., 578 F.3d 1270,
1277 (11th Cir. 2009).
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because of persecution or a well-founded fear of persecution on
account of . . . [her] political opinion.
8 U.S.C. § 1101(a)(42)(A). The INA expressly recognizes forced sterilizations as
persecution:
a person who has a well founded fear that . . . she will be forced to
undergo [involuntary sterilization] or subject to persecution for [a]
failure [or] refusal [to do so], or resistance [to the same] shall be
deemed to have a well founded fear of persecution on account of
political opinion.
8 U.S.C. § 1101(a)(42)(B) (emphasis added); Zhang v. U.S. Att’y Gen., 572 F.3d
1316, 1319-20 (11th Cir. 2009). Additionally, 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 this standard, however, the fine
should reduce the alien “to an impoverished existence.” Id. at 174.
The asylum applicant carries the burden of proving statutory “refugee”
status. 8 C.F.R. § 208.13(a); Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). Because Jiang does not argue that she suffered past persecution, to meet
this burden Jiang must establish, with specific and credible evidence, a well-
founded fear of future persecution on account of her political opinion. 8 C.F.R.
§ 208.13(b); Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007).
“Uncorroborated but credible testimony from the applicant may be sufficient alone
10
to sustain the burden of proof for asylum or withholding of removal.”
D-Muhumed, 388 F.3d at 818-19. An applicant can establish a well-founded fear
of future persecution by showing a fear based upon a reasonable possibility of
future persecution on account of a protected ground, that is both “subjectively
genuine and objectively reasonable.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d
1341, 1352 (11th Cir. 2009) (citation and quotation omitted). “The objective
prong can be fulfilled by establishing that the applicant has a good reason to fear
future persecution.” De Santamaria v. U. S. Att’y Gen., 525 F.3d 999, 1007 (11th
Cir. 2008) (quotation omitted).
Alternatively, Jiang need not establish a reasonable possibility of
persecution if the applicant instead proves that she is subjected to a “pattern or
practice” of persecution in her country of nationality. 8 C.F.R. § 208.13(b)(2)(iii);
Kazemzadeh, 577 F.3d at 1352 (citation and quotation omitted).
Claims by Chinese nationals who fear future sterilization based on China’s
one-child policy must be evaluated on a case-by-case basis. In re J-H-S-, 24 I.&N.
Dec. 196, 201 (BIA 2007). To demonstrate that she has an objectively reasonable
fear, Jiang must show: (1) “the details of the family planning policy relevant to
[her]”; (2) she “violated the policy”; and (3) “the violation . . . would be punished
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in the local area in a way that would give rise to an objective fear of future
persecution.” Id. at 198-99.
Here, after review of the record, we conclude that substantial evidence
supports the conclusion that Jiang did not establish a well-founded fear of future
persecution. The BIA relied on the 2007 Asylum Profile, which stated that: (1) no
forced sterilizations had been reported in Fujian Province in the previous 10 years;
(2) officials were not aware of any policy mandating sterilization of one partner of
a couple who gave birth to two children abroad; and (3) documents from Fujian
Province were subject to widespread fabrication and fraud. To the extent that the
documents Jiang submitted conflict with the 2007 Asylum Profile, or arrive at
different conclusions, we do not reweigh the evidence. Jiang’s documents, viewed
in conjunction with the other evidence, do not compel the conclusion that she
faced a reasonable possibility of persecution upon return to China. Based on this
evidence, Jiang failed to establish an objectively reasonable fear of future
persecution. In re J-H-S-, 24 I.&N. Dec. 196, 201 (BIA 2007).
Moreover, Jiang failed to show a pattern or practice of persecution. First, as
noted, the evidence does not establish a uniform family planning policy in Fujian
Province as it related to children born in the United States. The 2007 Asylum
Profile stated there had been no reported cases of forced sterilization in the Fujian
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Province in 10 years. Second, the letters submitted do not establish that Jiang’s
cousin and sister-in-law were similarly situated to Jiang and thus do not establish a
pattern or practice of persecution. See Kazemzadeh, 577 F.3d at 1352.
Finally, Jiang failed to establish that the potential fines she faced rose to the
level of persecution. Jiang submitted no evidence to show that the fines would
leave her family in an impoverished existence. In absence of such evidence, the IJ
and BIA properly rejected the fines as a basis for her persecution claim.
Because Jiang failed to show that she was entitled to asylum, and her claims
for withholding of removal and CAT relief are based on the same facts, Jiang also
failed to meet the higher standards for withholding of removal and CAT relief.
Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 891 (11th Cir. 2007).
PETITION DENIED.
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