Qiao Er Lian v. Attorney General ( 2011 )

IMG-152 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1251
___________
QIAO ER LIAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A89 252 004)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 8, 2011
Before: BARRY, HARDIMAN AND COWEN, Circuit Judges
(Opinion filed: June 10, 2011)
___________
OPINION
___________
PER CURIAM
Qiao Er Lian, a native and citizen of China, petitions for review of an order of the
Board of Immigration Appeals (“BIA”) that dismissed his appeal from an Immigration
Judge‟s (“IJ”) final removal order. We will deny the petition for review.
Lian entered the United States without inspection in 2007, and applied for asylum
and related relief. His asylum claim was based on his allegation that after giving birth to
their son, his wife was forced to abort a second pregnancy. Lian amended his application
on January 20, 2009 to include a claim that he had been baptized in the Catholic church
on December 25, 2008, and that he feared persecution in China on account of his
religious beliefs. After a hearing on his claims, the IJ denied relief.
On appeal, the BIA agreed with the IJ that Lian‟s claim of persecution based on
his wife‟s abortion was foreclosed by this Court‟s decision in Lin-Zheng v. Attorney
General, 557 F.3d 147 (3d Cir. 2009) (en banc). The BIA recognized that Lian could still
claim persecution in his own right on account of “other resistance” to China‟s population
policy, but agreed with the IJ that Lian had not shown that he was persecuted for
engaging in any form of other resistance, as he was not present at the time his wife was
taken away for an abortion, and he did not otherwise communicate his disapproval to the
authorities in any way.
As to his religious claim, the BIA noted that Lian was unaware of whether
Catholics can practice their religion in China, or whether Catholicism is officially
recognized in China, but that based on what friends told him, he was against attending
any official church in China because he believed that the government does not believe in
God. The BIA agreed with the IJ that the background evidence did not demonstrate a
pattern or practice of persecution of Catholics in China, and that while the record showed
that some church leaders had been subject to persecution, Lian was not a church leader.
2
The BIA further noted that tolerance of unregistered churches varied widely by locale,
and that Lian was not aware of whether there were any unregistered churches near his
home in China. The BIA found that his fear of persecution was thus speculative. The
BIA also concurred with the IJ that Lian had not established that he was likely to be
tortured based on his illegal departure from China, as the record did not reflect that
persons repatriated after a first illegal departure from China encountered persecution or
torture. The BIA dismissed Lian‟s appeal, and Lian filed a timely, counseled petition for
review.
We have jurisdiction to review a final order of removal of the BIA under 8 U.S.C.
§ 1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). “[W]hen the BIA
both adopts the findings of the IJ and discusses some of the bases for the IJ‟s decision, we
have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376
F. 3d 215, 222 (3d Cir. 2004). Our standard of review is narrow. We must sustain the
Board‟s removal order if there is substantial evidence in the record to support it. Abdille
v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001).
An applicant seeking asylum bears the burden of showing that he is a “refugee”;
that is, he is “a person who is unable or unwilling to return to his 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.‟” Ahmed v. Ashcroft, 341
F.3d 214, 217 (3d Cir. 2003), quoting 8 U.S.C. § 1101(a)(42)(A); see also 8 C.F.R.
§ 1208.13(a) (allocating burden of proof). Further, a person who has been persecuted for
3
failure or refusal to undergo a forced abortion or involuntary sterilization, or “for other
resistance to a coercive population program, shall be deemed to have been persecuted on
account of political opinion.” 8 U.S.C. § 1101(a)(42)(B). Persecution does not include
all treatment regarded as unjust or unfair; rather, it must be “so severe that [it]
constitute[s] a real threat to life or freedom.” Chavarria v. Gonzalez, 446 F.3d 508, 518
(3d Cir. 2006) (citations omitted).
The BIA here properly noted that Lian was not eligible for asylum based solely on
his wife‟s forced abortion. Lin-Zheng, 557 F.3d at 156-57. Lian implicitly
acknowledges this, but argues that he established past persecution based on his own
resistance to China‟s family planning policy. See id. at 157 (noting that spouses remain
eligible for relief if they qualify as a refugee under § 1101(a)(42) based upon their own
persecution, or well-founded fear of persecution, for “other resistance” to a coercive
population control program). As evidence of resistance, Lian notes that he persuaded his
wife to have her IUD removed, that he paid for the removal, that he deliberately
impregnated her in defiance of the population policy, and that he helped his wife flee and
hide from authorities. Even if these actions constitute “other resistance,” the record does
not compel a finding that his experiences based on that resistance rise to the level of
persecution. Lian testified that he “felt very depressed” by his wife‟s abortion. A.R. 131.
“[A] finding of past persecution might rest on a showing of psychological harm.” Ouk v.
Gonzales, 464 F.3d 108, 111 (1st Cir. 2006). But, even assuming that a spouse‟s
emotional suffering remains a cognizable basis for asylum following Lin-Zheng, 557
4
F.3d at 156, we conclude that the record here does not establish that Lian suffered
psychological harm rising to the level of persecution. Cf. Jiang v. Gonzales, 500 F.3d
137, 141-43 (2d Cir. 2007) (finding no past persecution where forced abortion resulted in
illness and diminished health to petitioner‟s mother, imposing “anguish . . . and . . .
economic loss” to him).
As to Lian‟s religious claim, we do not find that the record compels a finding that
Lian is likely to be persecuted due to his Catholicism. As the BIA noted, China
recognizes Catholicism as a religion. A.R. 168. The BIA referred to Exhibit 7, the State
Department‟s 2008 International Religious Freedom Report for 2008, which states that
“5.3 million persons worship” in the state-sanctioned Catholic churches, “and it is
estimated that there are an additional 12 million or more persons who worship in
unregistered Catholic churches . . . .” A.R. 169. The same report also states that “[t]he
distinction between the official Catholic Church, which the Government controls
politically, and the unregistered Catholic Church has become less clear over time,” and
that “[i]n some official Catholic churches, clerics led prayers for the Pope, and pictures of
the Pope were displayed.” A.R. 175. We agree that the record does not reflect a pattern
or practice of persecution of Catholics outside of leadership positions.1
Because Lian did not meet the burden of showing that he is eligible for asylum, he
necessarily does not meet the higher burden for withholding of removal. Chen v. Att‟y
Gen., No. 09-3459, ---F.3d---, 2011 WL 923353, at *5 (3d Cir. March 18, 2011). We
5
further agree that the record does not support a finding that Lian is likely to be tortured if
he returns to China.
For the foregoing reasons, we will deny the petition for review.
1
Lian has not argued in his brief that he would be singled out for persecution.
6