Xiang Ming Wang v. Attorney General of the United States ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3005
___________
XIANG MING WANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency No. A089-254-391
Immigration Judge: Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 28, 2010
Before: SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges
Opinion filed: May 3, 2010
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OPINION
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PER CURIAM.
Petitioner Xiang Ming Wang, a native and citizen of China, entered the
United States in May, 2007 without being inspected. On November 12, 2007, he filed an
application for asylum under Immigration & Nationality Act (“INA”) § 208(a), 8 U.S.C. §
11158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and for
protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18,
claiming a fear of persecution on account of his opposition to China’s population control
policies. In his asylum application, Xiang Wang stated that his wife, Jian Yun Zheng,
gave birth to their first child, a girl, in 1987. In 1994, his wife gave birth to their second
child, a boy, at the Wen Wu Sha Town Health Clinic. Although the couple waited the
required five years, they did not obtain formal permission to have a second child. About
three months after the birth of their son, in December, 1994, Fujian Province Family
Planning Officials went to Xiang Wang’s mother’s home, took his wife to Chang Le City
Hospital, and forcibly sterilized her. A.R. 390.
On January 17, 2008, removal proceedings were initiated against Wang
when the Department of Homeland Security filed a Notice to Appear with the
Immigration Court, charging that he was subject to removal pursuant to INA §
212(a)(6)(A)(I), 8 U.S.C. §1182(a)(6)(A)(I), as an alien present in the United States
without being admitted or paroled. Xiang Wang admitted the allegations in the NTA and
conceded removability.
A hearing on the merits was held on June 9, 2008. At the hearing, Xiang
Wang testified that he was married in 1986 and his marriage was officially registered on
February 6, 1990. He has two children, a daughter born on December 23, 1987, and a son
born on September 17, 1994. His wife and children presently remain in China. In
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December, 1994, his wife was forcibly sterilized while he was at work in Fuzhou City.
He did not get to the hospital until it was too late and she had already been sterilized.
Xiang Wang did not want his wife to be sterilized. A.R. 89-90, 100-01.
Over a year later, on January 6, 1996, Wang learned that he had been fined
8,500 RMB, more than a year’s salary, for the birth of his son. A.R. 91-92. Despite the
fact that his children were born 7 years apart, 2 years more than the 5 years required by
the family planning office for having a second child, he was fined because he failed to
obtain a birth permit. See id. 90-91. Wang refused to pay, but his wife was frightened
and gave what money they had – 1,500 RMB – to the officials who came to his house to
collect the fine. The money was not enough and the officials tried to arrest Xiang Wang.
He resisted arrest, and they pushed him down and punched and kicked him, and
ultimately effected an arrest. See id. at 92-93. He was detained at the Lang Qi Town
Family Planning Office. His wife was able to borrow an additional 7,000 RMB from
neighbors and relatives and she brought the money to the officials. Xiang Wang was
released that evening. See id. He sought treatment for his injuries from a private doctor.
See id. at 105. Because of pain, he could not complete a homebuilding job he was
working on (as a carpenter). See id. at 103-04, 106. On May 6, 2007, about 11 years
later, Xiang Wang left China and flew to Mexico. From there, he crossed the border into
the United States.
In support of his asylum application, Wang offered a statement from his
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wife, which corroborated her involuntary sterilization, the fine, and Xiang Wang’s
beating. See id. at 139-40. Medical reports were submitted corroborating his wife’s
previous bilateral tubal ligation. The 2006 and 2007 State Department Country Reports
on China were made a part of the Administrative Record.
The Immigration Judge issued a decision at the end of the merits hearing,
denying all relief. The IJ found that Xiang Wang’s wife’s sterilization claim, which he
deemed credible, was insufficient to establish asylum eligibility under Matter of J-S-, 24
I. & N. Dec. 520 (BIA 2008), which had overruled Matter of C-Y-Z-, 21 I. &. N. Dec.
915 (BIA 1997). Under current Board precedent, the spouse of a person who has
undergone involuntary sterilization is not per se entitled to refugee status. Moreover, as
to whether Xiang Wang had resisted the family planning officials, the harm he alleged to
have suffered did not rise to the level of persecution. He was detained for only part of
one day, and he suffered no serious injuries. In the alternative, the IJ doubted whether
Xiang Wang had testified credibly because he could have but did not corroborate his
physical injuries, his wife did not mention in her statement that he saw a doctor for his
injuries, and he proffered no letter from his employer concerning his inability to work
after he allegedly was beaten. Finally, the IJ concluded that there was no evidence that
Xiang Wang would be persecuted in the future because his wife had already been
sterilized and he had paid all of his fine. In addition, he was not entitled to withholding
of removal because he could not even meet the test for asylum, and his CAT claim had no
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evidentiary support. The IJ ordered Xiang Wang removed to China.
Xiang Wang appealed to the Board of Immigration Appeals, challenging
the IJ’s adverse credibility determination and assessment of the sufficiency of the
evidence of his “other resistance” to China’s population control policies. On June 12,
2009, the Board dismissed the appeal, agreeing with the IJ that Xiang Wang was not per
se eligible for refugee status under Matter of J-S-, 24 I. & N. Dec. 520 (BIA 2008), and
our decision in Lin-Zheng v. Att’y Gen. of U.S., 557 F.3d 147 (3d Cir. 2009) (en banc).
He, therefore, could not show past persecution. Although a husband may not establish
eligibility based on his wife’s sterilization, he may still establish eligibility by showing
that he was persecuted for “other resistance” to China’s population control policies, or he
has a well-founded fear of future persecution on account of such resistance, see id. at 157;
INA § 101(a)(42)(B). However, even assuming that Xiang Wang’s conduct in refusing to
pay the 8,500 RNB fine, and resisting arrest (and the resulting injuries) constituted “other
resistance,” he did not meet his burden of proof, because he failed to provide reasonably
obtainable corroboration from his treating physician and his employer. Furthermore, a
single beating does not rise to the level of persecution, see Chen v. Ashcroft, 381 F.3d
221, 234-35 (3d Cir. 2004).
In addition, the objective reasonableness of Xiang Wang’s fear of future
persecution was seriously undermined by the fact that he remained in China for 11 years,
unharmed, following his brief detention for failing to pay the complete fine. There now
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were no outstanding fines, and Xiang Wang had failed to show that family planning
officials remained interested in him, or those similarly situated to him. The Board agreed
with the IJ that Xiang Wang was not entitled to withholding of removal because he could
not even meet the test for asylum, and his CAT claim had no evidentiary support. Xiang
Wang has timely petitioned for review of the Board’s decision.
We will deny the petition for review. We have jurisdiction under 8 U.S.C.
§ 1252(a)(1), (b)(1). Where the Board adopts the findings of the IJ and discusses some of
the bases for the IJ’s decision, we have authority to review both decisions. Chen v.
Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). An applicant bears the burden of proving
eligibility for asylum. Shardar v. Att’y Gen. of U.S., 503 F.3d 308, 312 (3d Cir. 2007).
The Board’s findings “are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). See also Immigration
& Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under this
deferential standard, Xiang Wang must establish that the evidence does not just support a
contrary conclusion but compels it. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.
2002).
Persecution is defined as “threats to life, confinement, torture, and
economic restrictions so severe that they constitute a threat to life or freedom.” Kibinda
v. Att’y Gen. of U.S., 477 F.3d 113, 119 (3d Cir. 2007) (quoting Fatin v. Immigration &
Naturalization Serv., 12 F.3d 1233, 1240 (3d Cir. 1993)). It refers only to “severe”
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conduct and “does not encompass all treatment our society regards as unfair, unjust or
even unlawful or unconstitutional.” Id. In the absence of evidence of past persecution,
the applicant must demonstrate a subjective fear of persecution through credible
testimony that his fear is genuine, Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003),
and the applicant must show that a reasonable person in his circumstances would fear
persecution if returned to the country in question, see id.The more exacting withholding of removal standard requires an alien to
show by a “clear probability” that his life or freedom would be threatened on account of a
protected ground in the proposed country of removal. Immigration & Naturalization
Serv. v. Stevic, 467 U.S. 407 (1984). See also Immigration & Naturalization Serv. v.
Cardoza-Fonseca, 480 U.S. 421, 430 (1987) (“would be threatened” standard has no
subjective component). In making out a CAT claim, the burden of proof is on the
applicant to establish that it is more likely than not that he would be tortured in his native
country. 8 C.F.R. § 1208.16(c)(2).
In 1996, Congress enacted the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”), which added the following language at the end of INA §
101(a)(42)’s definition of refugee:
For 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
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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.
INA § 101(a)(42), 8 U.S.C. § 1101(a)(42) (2009).
The Board previously held that, under INA § 101(a)(42), a husband who
established that his wife underwent a forced abortion or involuntary sterilization was per
se entitled to refugee status, see Matter of C-Y-Z-, 21 I. & N. Dec. 915, and Matter of S-
L-L-, 24 I. & N. Dec. 1 (BIA 2006). We extended Chevron deference, Chevron U.S.A.,
Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837, 842 (1984), to this
interpretation by the Board in Sun Wen Chen v. Att’y Gen. of U.S., 491 F.3d 100, 107-
108 (3d Cir. 2007). However, the Attorney General overruled Board precedent in Matter
of J-S-, 24 I. & N. Dec. 520, concluding that a proper reading of INA § 101(a)(42) does
not encompass a per se entitlement to asylum for the spouses of those who have
undergone a forced abortion or involuntary sterilization, id. at 529-30. Rather, the statute
extends relief only to those who have actually undergone the procedures. See id.
We independently reached the same conclusion in Lin-Zheng, 557 F.3d 147(overruling Sun Wen Chen). The statute is unambiguous and does not extend automatic
refugee status to spouses. Id. Therefore, eligibility for asylum based on the experiences
of one’s spouse is legally insufficient. Id. at 156 (“Thus, there is no room for us to
conclude that Congress intended to extend refugee status to anyone other than the
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individual who has either been forced to submit to an involuntary abortion or sterilization,
has been persecuted for failure or refusal to undergo such a procedure, or has a well-
founded fear of that occurring in the future.”). The statute cannot be more clear in its
reference to a person rather than a couple. See id.Both Lin-Zheng and Matter of J-S- foreclose eligibility for asylum in Xiang
Wang’s case solely on the basis of his wife’s involuntary sterilization. Thus, he can only
establish a basis for asylum if he shows that he suffered past persecution or has a well-
founded fear of persecution in China on account of his “other resistance” to the Chinese
government’s population control policies. Lin-Zheng, 557 F.3d at 157; Matter of J-S-, 24
I. & N. Dec. at 538. The phrase other resistance “covers a wide range of circumstances,
including expressions of general opposition, attempts to interfere with enforcement of
government policy in particular cases, and other overt forms of resistance to the
requirements of the family planning law,” see Matter of S-L-L-, 24 I. & N. Dec. at 10.
We conclude that Xiang Wang’s evidence does not compel the conclusion
that he exercised “other resistance” to China’s population control policies sufficient to
qualify him for refugee status. 8 U.S.C. § 1252(b)(4)(B). Even assuming that he testified
credibly and that additional corroboration of his physical injuries and the loss of one
carpentry job was not required, but see Chen v. Gonzales, 434 F.3d 212, 221 (3d Cir.
2005) (“a credible asylum applicant may be required to supply corroborating evidence in
order to meet [his] burden of proof”), he did not meet his burden of proof to show that he
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was persecuted. The beating he suffered when he resisted arrest does not rise to the level
of persecution, see, e.g., Kibinda, 477 F.3d at 119-20 (five-day detention resulting in
minor injury did not amount to persecution); Voci v. Gonzales, 409 F.3d 607, 615 (3d
Cir. 2005) (single beating that does not result in serious physical injury does not compel
reversal of the Board’s decision that alien did not suffer past persecution), and the record
is devoid of any independent evidence to establish that the fine imposed or the loss of his
job left him in “an impoverished existence,” see Petitioner’s Brief, at 10, that rose to the
level of economic persecution, see Li v. U.S. Attorney Gen., 400 F.3d 157, 167-68 (3d
Cir. 2005) (deliberate imposition of severe economic disadvantage which threatens a
petitioner’s life or freedom may constitute persecution).
In his brief, Xiang Wang contends that he was “a victim of the change in
the law” in that his case was prepared when Matter of C-Y-Z- was still good law. See
Petitioner’s Brief, at 7. We are not persuaded that this argument warrants granting the
petition for review. Although the agency’s interpretation of INA § 101(a)(42) changed
with respect to spousal eligibility, and we overruled Sun Wen Chen, an alien’s eligibility
for asylum on the basis of “other resistance” has remained constant. The Board
recognized at the time of Xiang Wang’s merits hearing that an alien’s eligibility for
asylum under INA § 101(a)(42) included eligibility for persecution or feared persecution
on account of the alien’s other resistance to family planning policies. See, e.g., Matter of
J-S-, 24 I & N Dec. at 527; Li, 400 F.3d at 163. This part of INA § 101(a)(42) has been
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at all times relevant in Xiang Wang’s case.1 Even if he argued, and he does not, that his
case should be remanded for consideration of the “other resistance” issue, he does not
allege any facts, not previously submitted, that could support such a finding. Cf. 8 C.F.R.
§ 1003.2 (“A motion to reopen proceedings shall state the new facts that will be proven at
a hearing to be held if the motion is granted and shall be supported by affidavits or other
evidentiary material.”)
Substantial evidence also supports the Board’s determination that Xiang
Wang failed to demonstrate a well-founded fear of future persecution. He remained in
China for eleven years after his wife’s involuntary sterilization without further incident.
See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (when family members remain in
petitioner’s native country without meeting harm, and there is no individualized showing
of persecution, the reasonableness of alien’s well-founded fear of persecution is
diminished).
Because Xiang Wang failed to show past persecution or a reasonable fear of
future persecution under the lower burden of proof required for asylum, he is necessarily
ineligible for withholding of removal. Cardoza-Fonseca, 480 U.S. at 430-32. In addition,
the record does not compel a conclusion that he met his burden of establishing that it is
more likely than not that he will be tortured upon his return to China, 8 C.F.R. §
1The argument is especially weak because Matter of J-S- was decided on May 15,
2008, and thus prior to Xiang Wang’s removal hearing.
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1208.16(c)(2).
For the foregoing reasons, we will deny the petition for review.
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