Yun Wang v. Eric Holder, Jr. , 493 F. App'x 476 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1659
YUN WANG,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: August 7, 2012 Decided: August 22, 2012
Before KING, DUNCAN, and FLOYD, Circuit Judges.
Petition dismissed in part and granted in part; vacated and
remanded by unpublished per curiam opinion.
Yun Wang, Petitioner Pro Se. Lindsay Corliss, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Yun Wang, a native and citizen of the People’s
Republic of China, petitions for review of an order of the Board
of Immigration Appeals (“Board”) dismissing her appeal from the
immigration judge’s order denying her applications for asylum,
withholding of removal and withholding under the Convention
Against Torture (“CAT”). While we conclude that we lack
jurisdiction to review the denial of asylum, because the record
compels a finding that Wang established a well founded fear of
persecution, we grant in part the petition for review, vacate
the Board’s order and remand for further proceedings.
We note that we are without jurisdiction to review the
Board’s determination that Wang’s asylum application was not
timely. See Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir.
2009). We further note that Wang fails to make a constitutional
challenge or raise a question of law regarding the denial of
asylum.
While this court does not have jurisdiction to
consider the denial of Wang’s untimely application for asylum,
we retain jurisdiction to consider the denial of her request for
withholding of removal as this claim is not subject to the one-
year limitation bar. See 8 C.F.R. § 1208.4(a) (2012). The
current state of the law regarding this court’s review of a
final order denying withholding of removal was recently
2
summarized in Djadjou v. Holder, 662 F.3d 265, 272-74 (4th Cir.
2011). In order to qualify for withholding of removal, the
alien must show that there is a clear probability of persecution
on account of a protected ground, such as political opinion or
religious belief. See 8 U.S.C. § 1231(b)(3)(A) (2006); 8 C.F.R.
§ 1208.16(b)(1)(i) (2012). A showing of past persecution on
account of a protected ground creates a rebuttable presumption
that the threat would recur upon removal. 8 C.F.R.
§ 1208.16(b)(1)(i).
If the alien fails to show past persecution, she can
establish entitlement to relief if she shows that it is more
likely than not that she will be persecuted on account of a
protected ground if removed to her country. Id.,§ 1208.16(b)(2) (2012). This may require some showing that the
alien herself will be singled out for persecution. See Cruz-
Lopez v. INS, 802 F.2d 1518, 1520-21 (4th Cir. 1986). She can
also show entitlement to relief by showing that there is a
pattern or practice of persecution of persons similarly situated
to her on account of a protected ground and that her own
inclusion with such persons makes it more likely than not that
her life or freedom would be threatened upon return. 8 C.F.R.
§ 1208.16(b)(2)(i), (ii). If the alien meets her burden,
withholding of removal is mandatory.
3
When the Board adopts the immigration judge’s decision
and includes its own reasons for affirming, this court reviews
both decisions. This court will uphold the Board’s decision
unless it is manifestly contrary to the law and an abuse of
discretion. The standard of review of the agency’s findings is
narrow and deferential. Factual findings are affirmed if
supported by substantial evidence. Substantial evidence exists
to support a finding unless the evidence was such that any
reasonable adjudicator would have been compelled to conclude to
the contrary. See Djadjou, 662 F.3d at 272-74 (case citations
omitted).
Because the immigration judge did not make an adverse
credibility finding, it is presumed Wang testified credibly.
See 8 U.S.C.§ 1158(b)(1)(B)(iii) (2006); Marynenka v. Holder,
592 F.3d 594, 599-601 & n.* (4th Cir. 2010).
The immigration judge found Wang did not meet the well
founded fear standard necessary to establish eligibility for
asylum. The immigration judge properly noted that if Wang could
not establish the well founded fear standard she could also not
establish the more stringent standard necessary to be eligible
for withholding of removal. The general rule is that one who
does not meet the standard for asylum is necessarily ineligible
for withholding of removal. Yi Ni v. Holder, 613 F.3d 415, 427
(4th Cir. 2010). Because the immigration judge found Wang did
4
not establish a well founded fear necessary for asylum, she did
not determine whether Wang met the more stringent standard for
withholding of removal.
We conclude that substantial evidence does not support
the immigration judge’s findings and that the record compels a
finding that Wang established a well founded fear of
persecution. Thus, we vacate the Board’s order and remand for a
determination of whether Wang met the requirements for
withholding of removal.
Initially, we conclude that substantial evidence
supports the finding that Wang did not establish that she
suffered past persecution because of her Falun Gong practice.
Her three-day detention and beating during her interrogation
that did not result in significant injury was insufficient to
compel a finding of past persecution. See Qiao Hua Li v.
Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (citing Dandan v.
Ashcroft, 339 F.3d 567, 573 (7th Cir. 2003)); see also
Kondakova v. Ashcroft, 383 F.3d 792, 797 (8th Cir. 2004). 1
1
We note that the immigration judge found “[t]here was no
medical attention required” after Wang was released from
detention, having suffered a bleeding mouth, swollen face and
bruises on her legs and arms. (A.R. at 82). Wang credibly
testified, however, that she did need to go to the doctor after
her release, but could not afford it. (A.R. at 106).
5
On the other hand, we conclude that Wang established
both the subjective and objective components necessary for the
well founded fear analysis. “The subjective component can be
met through the presentation of candid, credible, and sincere
testimony demonstrating a genuine fear of persecution. . . .
[It] must have some basis in the reality of the circumstances
and be validated with specific, concrete facts . . . and it
cannot be mere irrational apprehension.” Qiao Hua Li, 405 F.3d
at 176 (internal quotation marks and citations omitted). The
objective element requires a showing of specific, concrete facts
that would lead a reasonable person in like circumstances to
fear persecution. Gandziami–Mickhou v. Gonzales, 445 F.3d 351,
353 (4th Cir. 2006).
To demonstrate that a fear is well founded, the
applicant must show that her persecutor is or could become aware
of a disfavored belief or characteristic. Hongsheng Leng v.
Mukasey, 528 F.3d 135, 142 (2d Cir. 2008). An alien can do this
by offering evidence that she will be singled out or that there
is a pattern or practice of persecuting persons similarly
situated to the alien. Id.Because it is presumed that Wang testified credibly,
she established the subjective component of the well founded
fear analysis. See Zhou v. Gonzales, 437 F.3d 860, 867 (9th
Cir. 2006); Zhao v. Gonzales, 404 F.3d 295, 307 (5th Cir. 2005).
6
Wang’s credible testimony, supporting affidavits and
objective evidence showed the following: Falun Gong is a
practice that is labeled a cult and outlawed in China. Wang is
a Falun Gong practitioner who was detained for three days and
beaten after being arrested for handing out Falun Gong fliers.
In order to be released from detention, she agreed to spy on
Falun Gong members. After her release, authorities came to the
family house threatening her mother. However, Wang was already
in hiding at a relative’s house and stayed there until she left
China for the United States, arriving in April 2004. In 2008,
her father was detained for two weeks after authorities learned
Wang was practicing Falun Gong in the United States. We submit
this evidence shows that Wang is a known Falun Gong
practitioner, that she was arrested for handing out Falun Gong
fliers and that she left China after agreeing to spy for
authorities. After considering this evidence along with the
objective record evidence, we are compelled to find that Wang
has a well founded fear that she will be targeted when she
returns.
The immigration judge noted that Wang could not
testify as to how Chinese authorities were aware that she
continued her practice in the United States. Given that Wang
testified credibly about the reasons for her father’s detention
and her testimony on this issue is supported by her mother’s
7
affidavit, we conclude it was speculative and unreasonable for
the immigration judge to believe that Wang should know how
authorities came to learn she practiced Falun Gong in the United
States.
The immigration judge also found it significant that
four years passed between Wang’s detention and 2004 exit from
China and her father’s 2008 detention. While the passage of
time may be relevant in considering whether authorities are
still targeting a particular alien, in this instance, the
immigration judge failed to consider that authorities did indeed
target Wang soon after her release from detention and then had
to learn that Wang left China for the United States and that she
continued her practice after she arrived.
The State Department’s 2008 Human Rights Report for
China and the 2007 Profile of Asylum Claims and Country
Conditions for China show that Falun Gong practitioners, from
high level leaders to private practitioners, stand a risk of
being persecuted by being sent to reeducation through labor
camps, psychiatric hospitals or imprisonment. This is contrary
to the immigration judge’s conclusion that Wang does not have a
well founded fear because she is not a well known Falun Gong
activist or a person who holds a position in a Falun Gong
organization. According to the Human Rights Report, in has been
reported that since 1999, 100,000 Falun Gong practitioners have
8
been sentenced to labor camps and 3000 persons have died from
being tortured. While the objective evidence indicates that the
range of sanctions goes from a fine or loss of employment to
something more severe, such as detention in a labor camp, Wang
was previously detained for handing out Falun Gong fliers, told
authorities she would spy for them, and then continued
practicing Falun Gong once she arrived in the United States. It
is reasonable to assume she might face a more severe sanction if
she were to return to China. See Shan Zhu Qiu v. Holder, 611
F.3d 403, 408 (7th Cir. 2010) (State Department reports show a
progressive discipline system for Falun Gong practitioners and
that the punishment stops when the alien ceases to practice).
After taking into account the entire record, we
conclude it compels a finding that Wang established both the
subjective and objective components of a well founded fear of
persecution.
Accordingly, while we dismiss the petition for review
from the denial of asylum as untimely, we grant the petition
from that part of the Board’s order denying withholding of
removal. We vacate the Board’s order in part and remand for
consideration of whether Wang established the stringent
9
requirements for withholding of removal. 2 We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
PETITION DISMISSED IN PART AND GRANTED IN PART;
VACATED AND REMANDED
2
In her informal brief, Wang does not challenge the denial
of relief under the CAT. Accordingly, that claim is abandoned
and was not reviewed by this court. See Ngarurih v. Ashcroft,
371 F.3d 182, 189 n.7 (4th Cir. 2004) (finding that failure to
raise a challenge in an opening brief results in abandonment of
that challenge); Edwards v. City of Goldsboro, 178 F.3d 231, 241
n.6 (4th Cir. 1999) (same).
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