Qisheng Zhang v. Eric Holder, Jr. , 443 F. App'x 163 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0873n.06
No. 10-3686 FILED
Dec 21, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
QISHENG ZHANG, ) ON PETITION FOR REVIEW FROM
) THE BOARD OF IMMIGRATION
Petitioner, ) APPEALS
)
v. )
)
ERIC H. HOLDER, JR., Attorney General )
)
Respondent. )
Before: GUY, KETHLEDGE, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Petitioner Qisheng Zhang (“Zhang”) seeks review
of the Board of Immigration Appeals’ (“BIA”) dismissal of his claim for asylum. We affirm.
I.
Zhang was born in the Fujan Province of China in 1977. In August, 1998, prior to reaching
the legal marriage age in China, Zhang married Xu Chin Tong (“Xu Chin”) in a traditional
ceremony. The couple did not register their marriage at this time. Xu Chin became pregnant shortly
thereafter in December, 1998. Having a child outside the confines of a registered marriage is
considered a violation of China’s population control policies. Because the couple feared that family-
planning officials would force Xu Chin to abort her child, Xu Chin went into hiding in March, 1999.
Family planning officials ultimately found out about the pregnancy and went to the couple’s home
to search for Xu Chin. When the officials could not find Xu Chin they took Zhang into custody.
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Zhang v. Holder
Zhang was detained for fifteen days until his family posted a 16,000 RMB bond. As a farmer,
Zhang’s annual income was between 7,000 and 10,000 RMB.
Xu Chin gave birth to her son on August 3, 1999. When family-planning officials found out
about the birth, they kept the 16,000 RMB as a fine and forced Xu Chin to wear an IUD
contraceptive device and undergo forced gynecological examinations.
Zhang and Xu Chin registered their marriage on October 21, 1999. Years later, the couple
decided to have another child. Without permission, Xu Chin removed her IUD in January, 2006 and
became pregnant one month later. On April 28, 2006, six family-planning officials arrived at the
couple’s home to take Xu Chin to her forced gynecological examination. When Zhang attempted
to intervene the officials became physically confrontational. During the confrontation, Zhang pushed
an official to the ground and the official hit his head on a table. As a result, the official had a
bleeding wound. The other officials took Xu Chin and their wounded colleague to the hospital and
Zhang to the family-planning office.
Under the pretense of using the restroom, Zhang escaped the family-planning office by
climbing out of the bathroom window. That same day, Zhang learned that his wife had been forced
to abort their child. Zhang went into hiding at his brother-in-law’s house and learned that family-
planning officials were inquiring about his whereabouts. Approximately two weeks later, Zhang
came to the United States. Zhang’s wife and son remain in China.
The New York Immigration Court issued Zhang a Notice to Appear on March 28, 2007.
Zhang appeared with counsel and conceded removability but sought relief on the grounds of political
asylum, withholding of removal, and the Convention Against Torture (CAT). The Immigration
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Judge (“IJ”) determined that Zhang’s asylum application was untimely but also considered the merits
of Zhang’s application. Although Zhang was credible, the IJ found the evidence insufficient to
demonstrate past persecution or a well-founded fear of future persecution. With respect to Xu
Chin’s first pregnancy, and her subsequent hiding, the IJ determined that Zhang’s involvement in
those actions did not constitute resistance. The IJ also found that the 16,000 RMB fine and fifteen-
day detention were not imposed because of Zhang’s opposition to China’s family control policy.
While the IJ did consider removal of Xu Chin’s IUD and Zhang’s physical resistance to the family
planning officials acts of “other resistance,” the IJ decided that Zhang’s thirty-minute detention for
injuring the family planning official did not rise to the level of persecution. Lastly, the IJ concluded
that Zhang had not established a well-founded fear of future persecution based on a protected
ground, but rather a fear of prosecution based on his violation of a law of general applicability - -
assault of a family planning official.
The BIA upheld the IJ’s decision on the merits and dismissed Zhang’s appeal.
II.
Pursuant to 8 U.S.C. § 1158(a), the Attorney General may grant asylum to refugees. A
“refugee” is:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country
in which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that 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).
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If an applicant demonstrates past persecution or a well-founded fear of future persecution
based on a protected ground, the Attorney General may exercise his discretion and grant asylum.
Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003).
Congress amended INA § 101(a)(42) in 1996, adding the following provision:
[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 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. Id.
Under the BIA’s initial interpretation of this amendment, spouses of individuals forced to
have an abortion or undergo involuntary sterilization were deemed persecuted. In re C-Y-Z-, 21 I.
& N. Dec. 915 (BIA 1997). Eleven years later, the Attorney General overruled the BIA’s
interpretation and held that only the individual who is forced to have an abortion or sterilized, or is
in fear of either occurrence, is per se a victim of persecution. See Matter of J-S-, 24 I. & N. Dec.
520, 523 (A.G. 2008). However, the Attorney General left open the possibility that spouses could
be eligible for asylum under the statute by satisfying the “other resistance” prong. Under BIA
precedent, “resistance” can encompass “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.” Matter of S-L-L,
24 I. & N. Dec. 1, 10 (BIA 2006).
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In addition to demonstrating “other resistance,” an asylum petitioner must show they were
persecuted on account of that resistance. See Jiannong Jiang v. Holder, 400 F. App’x. 859 (5th Cir.
2010). When considering whether the petitioner’s experiences rise to the level of persecution “the
IJ must view the evidence in the aggregate, as a collection of harmful events, even though they may
not qualify individually as persecution, [that] may taken together constitute persecution.” Haider
v. Holder, 595 F.3d 276, 287 (6th Cir. 2010) (internal citations omitted). Nonetheless, persecution
“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.” Id. at 286(quoting Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998)).
Zhang contends that impregnating his wife before they were legally married and helping her
hide from Chinese family planning officials demonstrates “other resistance” to China’s family
control policies. However, the mere impregnation of one’s girlfriend or spouse does not qualify as
an act of resistance. See, e.g., Zhang v. Ashcroft, 395 F.3d 531, 532 (5th Cir. 2004); Shi Liang Lin
v. U.S. Dep’t of Justice, 494 F.3d 296, 313 (2d Cir. 2007). Additionally, even if we considered
Zhang’s efforts to hide his wife “other resistance,” his fine and detention do not amount to
persecution. See, e.g., Dubal v. Mukasey, 257 F. App’x 875 (6th Cir. 2007) (three detentions lasting
for three weeks, two days, and three hours, along with one beating and a week of threatening phone
calls did not constitute persecution); Guo Qiang Hu v. Holder, 318 F. App’x 348, 353 (6th Cir.
2009) (citing Li v. Gonzales, 405 F.3d 171, 178 (4th Cir. 2005) (fine of over one year’s salary for
having a child out of wedlock did not constitute persecution)).
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While the IJ found that Zhang’s attack of the family planning official was an act of resistance,
the only consequence of Zhang’s resistance was a thirty minute detention at the family-planning
office. Zhang has not alleged that he suffered any physical violence or other type of harm during this
thirty-minute period. Such a brief detention by itself does not rise to the level of persecution. See
Mohammed v. Keisler, 507 F.3d 369 (6th Cir. 2007) (three-day detention without abuse followed by
an incident involving a slap and kick was not persecution).
An asylum applicant who fails to demonstrate past persecution is not entitled to a
presumption of future persecution and therefore must present evidence to substantiate a fear of future
persecution. Hegyi v. Gonzales, 136 F. App’x 777, 779 (6th Cir. 2005). Zhang claims that if he is
forced to return to China, he will be arrested and prosecuted because he injured a family-planning
official. “A petitioner may . . . establish that prosecution reaches the level of persecution if the
individual can demonstrate that the prosecution or criminal investigation ‘was actually pretext for
persecution’ on account of one of the INA’s enumerated grounds.” Cruz-Samayoa v. Holder, 607
F.3d 1145, 1151 (6th Cir. 2010). To determine whether pretext exists, we look at “the substance and
context of the law that the native country is attempting to enforce.” Id.The IJ and BIA determined that Zhang could be validly prosecuted for assaulting or causing
physical harm to a person charged with enforcing Chinese law. Zhang argues that there is no
evidence that the government official Zhang injured was acting lawfully. Zhang also claims he
should be granted asylum because Congress intended to afford refugee status to those who resist
illegitimate laws and policies, such as China’s coercive population control policy.
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Although this circuit has not yet considered this issue, our sister circuits have found that the
circumstances presented here do not support a well-founded fear of future persecution. See, e.g.,
Jiang, 400 F. App’x 859 (finding petitioner’s “potential prosecution for pushing the Chinese official
cannot constitute future persecution because . . . [petitioner] has not showed that the potential
prosecution for his admittedly criminal act would be pretextual, or based on a protected ground”);
Lin v. U.S. Attorney Gen., 555 F.3d 1310, 1316 (11th Cir. 2009) (no relief where fear of prosecution
is based on striking a family-planning official and leaving China illegally because those are not
statutorily protected grounds).
However, even if prosecution did rise to the level of persecution under these circumstances,
Zhang has failed to demonstrate that he is likely to be prosecuted upon his return to China. There
is no evidence that Chinese officials intended to arrest or prosecute him when they brought him to
the family-planning office. Additionally, there is no evidence that Chinese officials have threatened
to arrest Zhang upon his return. Zhang gave the following testimony during the immigration hearing:
I believe if I return to China, the government will release me to local
authority, especially to family planning official, and they will accuse
me of attacking officials and also in violation of family planning
policies. Later on they will probably put me in prison, or just - - will,
will beat, beat me physically.
Yet, Zhang’s additional testimony provides little support for his fear. Zhang testified that his wife
informed him that family-planning officials came to their house to search for him after his escape.
However, Zhang also stated he was not aware of an outstanding warrant for his arrest. Zhang further
testified that it was not the entire Chinese government that would seek him out, but only the family-
planning officials in his area and that he could avoid these officials by relocating to a different area.
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Under the circumstances, Zhang’s fear of prosecution is speculative. Moreover, we have previously
recognized that “[a]n applicant does not have a well-founded fear of persecution if he could relocate
to another part of his country of nationality to avoid persecution if, under all of the circumstances,
it would be reasonable to expect him to do so.” Biriiac v. Holder, 399 F. App’x 27, 35 (6th Cir.
2010).
Because Zhang has not demonstrated past persecution nor a well founded fear of future
persecution, we AFFIRM the BIA’s dismissal of his asylum claim.1
1
Zhang did not appeal the BIA’s denial of his claims for withholding of removal or relief
under CAT. We note, however, that Zhang’s failure to establish eligibility for asylum necessarily
means he cannot satisfy the more stringent burden for withholding of removal and demonstrating a
likelihood of torture upon his return to China.
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