Ling Chen v. Eric Holder, Jr. , 394 F. App'x 252 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0589n.06
No. 09-3671 FILED
Sep 02, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
LING JUAN CHEN, )
)
Petitioner-Appellant, )
)
v. ) ON PETITION FOR REVIEW FROM
) THE BOARD OF IMMIGRATION
ERIC H. HOLDER, Jr., United States ) APPEALS
Attorney General, )
)
Respondent-Appellee. )
)
Before: SILER and GIBBONS, Circuit Judges; REEVES, District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. Petitioner–appellant Ling Juan Chen petitions
for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing her appeal from
an Immigration Judge’s (“IJ”) decision denying her application for withholding of removal under
the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (“INA”), and the Convention Against
Torture (“CAT”). Chen, a native and citizen of the People’s Republic of China (“China”), applied
for withholding of removal based on alleged persecution by the Chinese government for membership
in an underground Christian church, illegally exiting China, and having two children in the United
States in alleged violation of Chinese family planning policies. Her application was denied by the
*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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IJ due to a lack of evidence of past or future persecution. The BIA affirmed the IJ’s decision and
dismissed her appeal.
For the following reasons, we dismiss the petition for review.
I.
In 1999, Chen fled her home of Guantou Town, located in Fuzhou City, Fuijian Province,
due to her fear of persecution for her religious affiliation. Chen began attending church in China in
1993 and attended church up to four days a week. The Chinese government considered Chen’s
church, the Guantou Christa Delphians,1 an “underground” church. On October 25, 1998, during
a church meeting, officials from the public security bureau came to arrest members of the church.
When the officials arrived, Chen heard a commotion from the back of the church where she was
washing tables. A church member shouted for her to “run,” and Chen fled the church through the
back door and ran to the nearby mountains.
Chen hid in the mountains until nightfall, then walked to a relative’s house. There, she
telephoned her parents, who advised her to stay with her relative and not return home because the
public security officials were arresting people from her church. Two days later, Chen’s father called
to inform her that the public security bureau had come to their house and served a notice requiring
her to appear for a hearing at the bureau in seven days. Chen had heard from other church members
that people who appeared for hearings at the bureau received beatings and experienced other forms
of violence, and so she did not appear for her hearing. Chen stayed in hiding, moving from one
1
Chen’s church is referred to, variously, throughout the record as the “Guantou Christian
Church,” “Christian Place,” and the “Guantou Christian meeting place.”
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relative’s house to another, and went eventually to her cousin’s home in Chong Qing City, Szechuan
Province, approximately ten to twenty hours away from Guantou Town, where she stayed for six or
seven months. While at her cousin’s house, she heard that her relatives in Guantou Town were being
questioned by officials and that the officials were looking for her. She did not often leave her
cousin’s home and was not harmed by the government while there.
In 1999, Chen came to the United States with the help of a “snake head,” a common Chinese
term for smuggler, for the price of $50,000. Chen flew from China to Hong Kong using a Chinese
passport.2 However, in Hong Kong, the smuggler took the passport and gave her a fake passport in
English that contained her picture. She entered the United States on June 15, 1999, but did not seek
asylum because she did not know that it was available and because she was working to pay off the
remaining amount owed for the smuggler’s services.3 Since her arrival, Chen has married and has
had two children, both born in the United States.
Chen’s family remains in China, where her parents belong to an officially recognized,
registered church and her brother attends underground churches. Her brother moves around China
because he fears being caught by the government. Public security officials came to Chen’s parents’
house a “few times” a year to look for her after the incident on October 25, 1998, and continued to
2
There is some inconsistency between Chen’s testimony at her hearing and the IJ’s decision
on this point. The IJ found that Chen “left China utilizing a fake passport that contained her
picture.” However, Chen testified that when “[f]lying out from China [she] had [to] travel with a
Chinese passport.” When asked if it was her passport, Chen replied in the affirmative.
3
Chen, through counsel, conceded that she is statutorily ineligible for the relief of asylum
because she did not file before the one-year bar. See 8 U.S.C. § 1158(a)(2)(B).
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come after her departure from China. The officials broke dishes and pushed over furniture while at
the house.
The Department of Homeland Security initiated removal proceedings against Chen on August
24, 2008. Chen applied for withholding of removal under the INA and withholding pursuant to
Article 3 of the CAT. At her hearing before the IJ on January 29, 2009, she testified that she believes
that if she is returned to China, the public security bureau would imprison her for three reasons: (1)
she attended an underground Christian church in China; (2) she was smuggled illegally out of China;
and (3) she has had two children in the United States, in violation of Chinese family planning
policies. Chen further testified that she could not relocate in China because, in order to resume her
previous career as a nurse, she would have to register herself, and this registration would alert the
police that she was back in China. While the IJ found Chen credible, she nevertheless denied Chen’s
application and ordered her removed to China, finding that Chen failed to demonstrate her eligibility
for withholding of removal under both the INA and the CAT.
First, the IJ found that there was no evidence of past persecution relating to Chen’s religious
practices because Chen did not testify that she was arrested, detained, or beaten while in China. The
IJ further found that the notice to appear before the public safety bureau did not rise to the level of
persecution. The IJ also found that the fact that Chen was able to stay with a relative for six or seven
months without incident, coupled with the fact that Chen’s brother frequently relocates,
demonstrated that Chen’s relocation within China would be possible, should she return.
The IJ also addressed Chen’s fear of returning to China because she was smuggled out of the
country illegally and found that there was no documentary evidence that Chen would be targeted
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because she was purportedly smuggled out of China. The IJ found that this claim was undercut by
the ease with which Chen obtained a passport and further noted that Chen obtained a passport and
passport extension from the Chinese Consulate in Chicago without problems. Furthermore, the IJ
found that Chen’s fear of returning to China because she was smuggled out of the country did not
contain the requisite nexus to a protected ground for purposes of establishing persecution.
Finally, the IJ found that Chen’s fear that she would be subject to Chinese family planning
policies, specifically, sterilization, should she return was insufficient to establish Chen’s eligibility
for withholding of removal under the INA. The IJ noted that Department of State Reports contained
in the record indicated that forced sterilization was formally prohibited in China. Further, the IJ
noted that, should Chen take her children back to China with her, they would not count for family
planning purposes, as long as they were not registered as permanent residents of China. Finally, the
IJ found that there was no evidence that Chen intended to have more children and then would have
to face the dilemma of whether to register her U.S.-born children and have them counted for family
planning purposes.
Chen filed an appeal from the IJ’s decision with the BIA, which the Board dismissed. The
BIA agreed with the IJ’s conclusion that Chen failed to meet her burden of establishing that she
suffered past persecution or that she faces a “clear probability” of persecution on account of any
protected ground if returned to China. The BIA found that the IJ properly determined that the
incident on October 25, 1998, did not rise to the level of persecution because Chen was never
arrested, detained, or physically harmed because of her membership in an underground church. The
BIA noted that, under Mikhailevitch v. INS, 146 F.3d 384 (6th Cir. 1998), persecution under the INA
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requires more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by
any physical punishment, infliction of harm, or significant deprivation of liberty. The BIA also
found that Chen had not established that it is more likely than not that she would suffer persecution
if removed to China. Next, the BIA found that Chen had not established eligibility for relief from
removal due to her alleged violation of the Chinese exit laws, noting that Chen had submitted
insufficient documentary evidence to support her claim that she would suffer persecution by the
Chinese government for illegally emigrating to the United States. Finally, the BIA found that Chen
had submitted insufficient evidence to demonstrate an objective fear that she would be sterilized or
suffer other harm rising to the level of persecution upon her return to China due to having had two
children in the United States.
II.
“Where the Board affirms the IJ’s ruling but adds its own comments, [this court] reviews
both the IJ’s decision and the Board’s additional remarks.” Karimijanaki v. Holder, 579 F.3d 710,
714 (6th Cir. 2009) (citing Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir. 2005)). We review the
agency’s factual findings under the substantial evidence standard. Hamida v. Gonzales, 478 F.3d
734, 736 (6th Cir. 2007). “These findings ‘are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). Accordingly,
“under this deferential standard, [the court] may not reverse the Board’s determination simply
because [it] would have decided the matter differently.” Karimijanaki, 579 F.3d at 714 (quoting
Koliada v. INS, 259 F.3d 482, 486 (6th Cir. 2001)). Rather, “reversal is merited only if the evidence
not only supports a contrary conclusion, but indeed compels it.” Lin v. Holder, 565 F.3d 971, 976
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(6th Cir. 2009) (citation, quotation marks, and alteration omitted). Legal questions are reviewed de
novo, but we defer to the BIA’s reasonable interpretations of the INA and its accompanying
regulations. Karimijanaki, 579 F.3d at 714; Lin, 565 F.3d at 976.
A.
To qualify for withholding of removal, “an alien must show that there is a ‘clear probability,’
that is, that ‘it is more likely than not,’ that she would be subject to persecution on the basis of” her
race, religion, nationality, membership in a particular social group, or political opinion. Almuhtaseb
v. Gonzales, 453 F.3d 743, 749 (6th Cir. 2006) (quoting Liti v. Gonzales, 411 F.3d 631, 640–41 (6th
Cir. 2005)); see 8 U.S.C. § 1231(b)(3)(A). “Persecution is ‘a threat to the life or freedom of, or the
infliction of suffering or harm upon, those who differ in a way regarded as offensive.’” Thap v.
Mukasey, 544 F.3d 674, 681 (6th Cir. 2008) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 222–23
(BIA 1985)).
“An applicant must therefore actually fear that he will be persecuted upon return to his
country, and he must present evidence establishing an objective situation under which his fear can
be deemed reasonable.” Mikhailevitch, 146 F.3d at 389 (citations and quotation marks omitted).
“More specifically, we have held that persecution consists of ‘more than a few isolated incidents of
verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm,
or significant deprivation of liberty.’” Thap, 544 F.3d at 681 (quoting Mikhailevitch, 146 F.3d at
390).
The alien can meet his burden by showing either: (1) past persecution on account of
a protected ground, in which case there is a rebuttable presumption that the alien’s
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life or freedom would be threatened if he returned to his native country; or (2) a
future threat to his life or freedom on account of a protected ground.
Id. (citing 8 C.F.R. § 208.16(b)(1) and (2), and Almuhtaseb, 453 F.3d at 750).
The IJ and the BIA concluded that Chen failed to establish past persecution because she did
not testify or present any evidence that she was personally arrested, detained, or physically harmed
because of her membership in an underground church. This finding is supported by substantial
evidence, as Chen testified only as to one incident in which she fled her church. According to Chen,
she was able to flee without incident and suffered no physical harm. Likewise, she was able to evade
a notice to meet with members of the public security bureau. Subsequent visits by government
officials to Chen’s family home did not result in arrest, detention, or violence. Such evidence of
harassment, without physical punishment, infliction of harm, or a significant deprivation of liberties
does not compel a conclusion of past persecution. See Mikhailevitch, 146 F.3d at 390. Chen
contends that her testimony concerning reports that other members of her church were arrested and
beaten by members of the police establishes past persecution. The alleged persecution of other
members of her church, however, is insufficient to compel a conclusion that Chen herself suffered
past persecution. See Aktar v. Gonzales, 406 F.3d 399, 406 (6th Cir. 2005) (concluding that alien
could not rely on persecution of others to meet burden of proof that he suffered past persecution)
(citing Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003)).
The IJ and the BIA also concluded that Chen failed to demonstrate a clear probability of
future persecution should she be removed to China based upon her prior membership in an
underground church, the birth of two children in the United States, or her illegal departure from
China. On Chen’s claim related to her religious affiliation, the IJ determined that, in light of the fact
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that Chen did not suffer past persecution in China and because she was able move to another region
of the country prior to departing China and live without incident, she did not demonstrate that it is
more likely than not that she will be persecuted on account of her religion. The IJ further noted
Chen’s testimony regarding her brother’s ability to move about the country without harassment while
working and attending underground churches, and concluded that this also demonstrated Chen’s
ability to relocate herself to a region in China where she will not face government harassment.
Given the record evidence on these points, we cannot conclude that the evidence compels a different
result than that reached by the BIA. Importantly, Chen did not demonstrate, nor does she argue on
appeal, that she would be unable to relocate in China to avoid the mistreatment she contends she
would face if she returns to her home town. See Fisenko v. Holder, 336 F. App’x 504, 516 (6th Cir.
2009) (noting that an alien “will not be considered to have a well-founded fear of persecution if he
could avoid persecution by relocating to another part of [his home country] if under all the
circumstances it would be reasonable to expect him to do so” (citing 8 C.F.R. § 208.13(b)(2)(ii))).
The conclusions of the IJ and BIA that Chen has not demonstrated a clear probability of future
persecution on account of her religion are therefore supported by substantial evidence.
Chen also claims that she will face persecution upon removal for violating China’s family
planning laws. Chen argues that, because she had two children while living in the United States, she
will face sterilization and other forms of persecution upon her return to China. The IJ and the BIA,
however, determined that Chen had put forth insufficient evidence to demonstrate that it is more
likely than not that she would be sterilized or otherwise persecuted for having children in the United
States in light of official reports indicating that foreign born children are not counted for purposes
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of China’s family planning laws. We have similarly recognized that China does not currently have
a national policy of requiring sterilization of parents who return with children born outside of China.
See Huang v. Mukasey, 523 F.3d 640, 653 (6th Cir. 2008). Chen’s testimony that she has heard of
people who were sterilized under circumstances similar to her own, without corroborating evidence,
does not compel a contrary conclusion. The BIA’s conclusion is therefore supported by substantial
evidence.
Finally, Chen does not appear to appeal the BIA’s determination that she did not demonstrate
a clear probability of persecution on account of her departing China illegally. Because Chen did not
brief the issue on appeal, it has been waived. See United States v. Johnson, 440 F.3d 832, 845–46
(6th Cir. 2006) (“[A]n appellant abandons all issues not raised and argued in its initial brief on
appeal. . . . [I]t is a settled appellate rule that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.” (citations and
internal quotation marks omitted)).
B.
“[T]o be eligible for withholding of removal under the CAT, ‘the applicant bears the burden
of establishing it is more likely than not that he or she would be tortured if removed to the proposed
country of removal.” Almuhtaseb, 453 F.3d at 749 (quoting Liti, 411 F.3d at 641). An alien “need
not show that the harm she faces is based on one of the five grounds (race, religion, nationality,
social group, political opinion) required under the INA, but rather must establish a ‘particularized
threat of torture.’” Id. at 751 (quoting Castellano-Chacon v. INS, 341 F.3d 533, 551 (6th Cir. 2003)).
“The term ‘torture’ only describes ‘an extreme form of cruel and inhuman treatment and does not
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include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to
torture.’” Id. (quoting 8 C.F.R. § 1208.18(a)(2)); see also 8 C.F.R. § 1208.18(a)(1).
All evidence should be assessed in considering whether it is more likely than not that an alien
would be subject to torture upon removal,
including but not limited to: (i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part of the country of removal
where he or she is not likely to be tortured; (iii) Evidence of gross, flagrant or mass
violations of human rights within the country of removal, where applicable; and (vi)
Other relevant information regarding conditions in the country of removal.
Id. (quoting 8 C.F.R. § 208.16(c)(3)).
Chen contends that she will be tortured in China because other members of her church have
been tortured while in police custody. The IJ, however, concluded that “the record is absolutely
devoid of any information from which this Court could discern that it is more likely than not that
[Chen] would be targeted for torture.” The IJ noted that Chen was able to relocate in China
following the incident at her local church, and was able to live there without problems for six months
before she left China. The evidence of Chen’s ability to relocate in China to avoid harassment and
potential persecution, coupled with the fact that she has not herself previously experienced
persecution, severely undercut her contention that she will be tortured upon return to China. The IJ’s
and BIA’s determinations on this issue were therefore supported by substantial evidence.
III.
For the foregoing reasons, we affirm the BIA’s decision.
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