Cai Zheng v. Eric Holder, Jr. ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1801
CAI YAN ZHENG; HANG LIN,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: January 15, 2013 Decided: February 13, 2013
Before MOTZ, DIAZ, and FLOYD, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Gregory Marotta, LAW OFFICE OF RICHARD TARZIA, Belle Mead, New
Jersey, for Petitioners. Stuart F. Delery, Acting Assistant
Attorney General, Blair O’Connor, Assistant Director, Rachel
Browning, 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Unpublished opinions are not binding precedent in this circuit.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:
Cai Yan Zheng and Hang Lin, natives and citizens of
the People’s Republic of China, petition for review of the Board
of Immigration Appeals’ (“Board”) order dismissing their appeal
from the immigration judge’s order denying their applications
for asylum and withholding of removal. We deny the petition for
review.
The Immigration and Nationality Act (“INA”) authorizes
the Attorney General to confer asylum on any refugee. 8 U.S.C.
§ 1158(a) (2006). The INA defines a refugee as a person
unwilling or unable to return to her native 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) (2006).
“Persecution involves the infliction or threat of death,
torture, or injury to one’s person or freedom, on account of one
of the enumerated grounds . . . .” Qiao Hua Li v. Gonzales, 405
F.3d 171, 177 (4th Cir. 2005) (internal quotation marks and
citations omitted). An individual who has been forced to submit
to an abortion or sterilization procedure is “deemed to have
been persecuted on account of political 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
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founded fear of persecution on account of political opinion.” 8
U.S.C. § 1101(a)(42) (2006).
An alien “bear[s] the burden of proving eligibility
for asylum,” Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir.
2006); see 8 C.F.R. § 1208.13(a) (2012), and can establish
refugee status based on past persecution in her native country
on account of a protected ground. 8 C.F.R. § 1208.13(b)(1)
(2012). * Without regard to past persecution, an alien can also
establish refugee status by showing a well-founded fear of
future persecution based on a protected ground. Ngarurih v.
Ashcroft, 371 F.3d 182, 187 (4th Cir. 2004). The well-founded
fear standard contains both a subjective and an objective
component. 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). “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
*
The Petitioners do not claim they suffered past
persecution.
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Li, 405 F.3d at 176 (internal quotation marks and citations
omitted).
A determination regarding eligibility for asylum or
withholding of removal is affirmed if supported by substantial
evidence on the record considered as a whole. INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). Administrative findings of
fact are conclusive unless any reasonable adjudicator would be
compelled to decide to the contrary. 8 U.S.C. § 1252(b)(4)(B)
(2006). This court will reverse the Board only if “the
evidence . . . presented was so compelling that no reasonable
factfinder could fail to find the requisite fear of
persecution.” Elias-Zacarias, 502 U.S. at 483-84; see Rusu v.
INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002). When both the
Board and the immigration judge issue decisions in an
immigration case, this Court will review both decisions.
Kourouma v. Holder, 588 F.3d 234, 239-40 (4th Cir. 2009).
An applicant’s credible testimony “may be sufficient
to sustain [her] burden of proof without corroboration.”
Marynenka v. Holder, 592 F.3d 594, 601 (4th Cir. 2010) (internal
quotation marks omitted). “However, even for credible
testimony, corroboration may be required when it is reasonable
to expect such proof and there is no reasonable explanation for
its absence.” Chen Lin-Jian v. Gonzales, 489 F.3d 182, 191-92
(4th Cir. 2007).
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“Regardless of [China’s] policy generally prohibiting
the birth of additional children following the birth of a son,
to be eligible for [asylum] relief the respondent must also meet
her burden of demonstrating a reasonable possibility that
Chinese Government officials would enforce the family planning
policy against her through means constituting persecution.”
Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 211 (B.I.A.
2010), abrogated on other grounds, Hui Lin Huang v. Holder, 677
F.3d 130 (2d Cir. 2012). The applicant must show that there is
a government policy implicated by the births at issue, that the
births in question are a violation of that policy and there is a
reasonable possibility that government officials would enforce
the policy against the petitioner through means constituting
persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 142-43
(2d Cir. 2008).
The Board and the immigration judge relied upon
reports issued by the State Department in support of the finding
that the Petitioners did not show an objective well-founded fear
of persecution. There was no support in the reports for the
conclusion that the Petitioners risk being forcibly sterilized
because they had two children in the United States. While they
may face a fine, there was no evidence to compel the conclusion
that the fine would be so severe that it would be tantamount to
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persecution. We conclude that there was no error in relying
upon the State Department’s reports.
A State Department report on country conditions is
highly probative evidence in a well-founded fear case.
Reliance upon these reports makes sense because this
inquiry is directly within the expertise of the
Department of State. . . .
Absent powerful contradictory evidence, the existence
of a State Department report supporting the BIA’s
judgment will generally suffice to uphold the Board’s
decision. Any other rule would invite courts to
overturn the foreign affairs assessments of the
executive branch.
Gonahasa v. INS, 181 F.3d 538, 542-43 (4th Cir. 1999). The
Board relies upon the State Department’s reports because “they
are based on the collective expertise and experience of the
Department of State which has diplomatic and consular
representatives throughout the world.” Matter of H-L-H- & Z-Y-
Z-, 25 I. & N. Dec. at 213.
The Petitioners contend that neither the Board nor the
immigration judge considered the documentary evidence they
submitted. In this instance, the immigration judge detailed the
contents of the administrative record and then stated that all
of the evidence was considered. The Petitioners fail to point
to any evidence that seriously undermines the State Department’s
reports regarding the treatment of persons who return to China
after giving birth to two children overseas.
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We also conclude there was no error in the immigration
judge’s and Board’s decision to give little weight to the more
localized evidence, such as the affidavits from friends and
family and the village committees’ responses to inquiries. The
evidence was unnotarized and in some instances unsigned. Also,
some of the evidence did not indicate that the Petitioners would
be forcibly sterilized or heavily fined. While some of the
evidence described instances of forced abortions or
sterilizations, there was nothing that could be related to the
Petitioners’ immediate situation.
We also reject the Petitioners’ argument that their
burden of proof was too high. The State Department’s reports
were highly probative evidence that went against their claims
for asylum and withholding of removal. The Petitioners failed
to submit sufficient evidence that compels a different result.
Because substantial evidence supports the denial of
asylum and withholding of removal and the record does not compel
a different result, we deny the petition for review. 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 DENIED
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