Wang, Jun Y. v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1344
JUN YING WANG,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A 78 237 820
____________
ARGUED OCTOBER 28, 2005—DECIDED APRIL 28, 2006
____________
Before EASTERBROOK, MANION, and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. Jun Ying Wang, a native of the
People’s Republic of China, entered the United States in
July 1997 on a one-month temporary nonimmigrant visi-
tor’s visa, which she overstayed. She was still in the United
States in October 2001, when she was convicted for her part
in a scheme to obtain Social Security cards using fraudulent
documents. Consequently, the Department of Homeland
Security issued Wang a Notice to Appear (“NTA”), charging
her with removability for overstaying her visitor’s visa,
being convicted of a crime of moral turpitude, and violating
18 U.S.C. § 1546 (prohibiting fraud and misuse of visas,
2 No. 05-1344
permits, and other entry documents). In response, Wang
admitted the allegations in the NTA, conceded removability,
and applied for asylum, withholding of removal, and
protection under the United Nations Convention Against
Torture (“CAT”). She based her request on her fear that if
she returned to China, she would be attacked by her
codefendants in the Social Security fraud scheme, who
sought retribution against her because she had cooperated
with authorities and received a more lenient sentence. The
Immigration Judge (“IJ”) denied Wang’s requests for relief,
and the Board of Immigration Appeals (“BIA”) summarily
affirmed. Wang now petitions for review of the BIA’s
decision, and we deny the petition for review.
I.
Wang testified through an interpreter at a hearing
held by an IJ on February 20, 2004. Much of the hearing
was dedicated to Wang’s explanation of her participation
and subsequent conviction in the Social Security card
scheme. She claimed that she became involved in April
2001 when her then-boyfriend, Yonghong Guo, asked her to
take a fake passport and “receipt” to the Social Security
office to pick up a Social Security card. Wang maintained
that she had never used a fake passport to obtain a
Social Security card before, but that Guo and a friend of his,
Wei Chu, had previously obtained Social Security cards by
presenting fraudulent identification documents such as
passports, I-94 forms, and nonimmigrant visas.
In May 2001 Wang, Guo, and Chu were charged together
in a thirty-two count indictment with violating 18 U.S.C.
§§ 1543 (prohibiting forgery or false use of a passport),
1546(a) (prohibiting use of forged or counterfeit
nonimmigrant visas), 1028(a)(6) (prohibiting knowingly
possessing a United States identification document pro-
duced without lawful authority) amended by PL 109-177,
No. 05-1344 3
Mar. 9, 2006 (120 Stat. 192), and 42 U.S.C. § 408(a)(6)
(forbidding knowingly furnishing false information to the
Commissioner of Social Security). Wang testified before the
IJ that after the three of them were arrested, she provided
prosecutors with information about the conspiracy. Specifi-
cally, she claimed to have told prosecutors how and where
the fake documents were produced and who was involved.
She also told prosecutors about the computer that Guo and
Chu had used to create the fraudulent “passport visas” and
I-94 cards. Finally, Wang testified that she told prosecutors
about a fourth individual, Shi Wei Min, who had stepped in
and taken over the computer after Guo and Chu were
arrested.
In October 2001, Wang pleaded guilty pursuant to
a written plea agreement to violating 18 U.S.C. §§ 1543,
1546(a), 1028(a)(6), and 42 U.S.C. § 408(a)(6). Guo and Chu
also pleaded guilty at that same time. Wang’s plea agree-
ment contemplated that she would cooperate fully in the
investigation and prosecution of the matters in the indict-
ment, and that if she provided substantial assistance, the
United States would consider moving for a downward
departure from the United States Sentencing Guidelines on
her behalf. At sentencing (in February 2002), the govern-
ment did move for a downward departure on Wang’s behalf,
and the court departed downward from the six to twelve-
month range called for by the Guidelines and sentenced her
to concurrent three-month terms of imprisonment to be
followed by two years of supervised release.
At the time of her immigration hearing, Wang did not
know whether Guo and Chu had been sentenced or what
sentences they received. Presumably, however, they
were sentenced shortly before or after Wang, because
Wang’s presentence investigation report (included with her
asylum application) stated that all three would be sen-
tenced together on February 14, 2002. Moreover, Wang
4 No. 05-1344
reported that both Guo and Chu had already been removed
to China.
In support of her asylum claim, Wang testified that if she
returns to China, Guo and Chu will seek retribution against
her on account of her cooperation with prosecutors. Wang
recounted the following examples to demonstrate Guo and
Chu’s intentions. First, she testified that while the three
were jailed together before she pleaded guilty, some female
inmates who moved onto her floor from the floor housing
Guo and Chu informed her that the men were offering a
reward to beat up Wang. Specifically, the women told Wang
that they had been told that the person “[w]ho beat the
Chinese girl will get the $200 from the Chinese guy.”
Wang also testified that Guo had contacted her from
China and threatened her. In April 2003 Guo and another
individual (presumably Chu) went to Wang’s brother’s
house in Shenyang and demanded that he call Wang. When
Wang’s brother resisted, they smashed his television. He
then called Wang, and when she answered, Guo was on the
line and accused Wang of betraying her friends. He then
gave her this ominous warning about returning to China: “.
. . as soon as you return to China I will try to look for you
and the moment you see me will be the end of your day.”
Although Wang’s brother reported the incident to the police,
when they looked for Guo he had moved. According to
Wang, Guo also called her brother on several other occa-
sions demanding money.
In response to questioning from the IJ about why Wang
could not move so that Guo and Chu could not find her,
Wang testified that it would be hard for her to relocate
because all of her family is in Shenyang. Further, she
maintained that if she were able to move, they would still
find her. She also claimed that the police could not ade-
quately protect her because they “cannot be around all the
time and they can do things to you and the police in China
they only come when after [sic] the thing happened.”
No. 05-1344 5
In addition to her fear of Guo and Chu, Wang asked
the judge to consider the fact that she had married a United
States citizen. Unfortunately, after their marriage, Wang’s
husband was involved in a serious car accident that left him
in a vegetative state. Thus, they had never lived together,
although Wang’s counsel speculated that Wang had some
sort of shared guardianship over her husband.
Before rendering his decision, the IJ expressed his
concern that Wang had never identified the ground on
which she based her claim for asylum. In response to
questioning from the IJ on this point, Wang’s counsel
conceded that her claim did not fit neatly into the categories
for asylum—race, religion, nationality, membership in a
particular social group, or political opinion. When asked to
identify a basis for the claim, counsel responded, “I think
we ask the Court to make a determination probably because
she provided assistance to the Government.” Counsel
continued, suggesting that “there should be an exception to
the categories of the rules because she provided assistance
to the Government of the United States [and] that’s the
reason why her life will be in danger.”
The IJ denied all of Wang’s requests for relief. As for her
asylum claim, he concluded that although Wang may have a
well-founded fear of being harmed in China, her fear was
not on account of her race, religion, nationality, member-
ship in a particular social group, or political opinion.
Specifically, the IJ considered whether Wang could argue
that she is a member of a social group made up of criminal
defendants who have cooperated with authorities in the
United States. He concluded, however, that such a classifi-
cation was not the type of social group contemplated under
the Immigration and Nationality Act (“INA”).
The IJ then rejected Wang’s claim that she could not
relocate within China so as to avoid contact with her
codefendants. The IJ acknowledged that Wang had pre-
6 No. 05-1344
sented “limited evidence” that Guo would be able to find her
if she relocated and that it is difficult to move freely in
China. Nonetheless, the IJ credited the U.S. Department of
State Country Report on China, which he claimed estab-
lished that “there is a floating population in China [of] more
than many millions.” Further, the IJ concluded from the
fact that the police had responded to Wang’s brother’s
complaint that Chinese authorities could provide assistance
to Wang if she felt threatened.
Finally, the IJ explained that even if Wang qualified
as a refugee, he would deny asylum in his discretion. He
concluded that the record contained little favorable evidence
to offset Wang’s criminal conduct in the United States.
First, she had violated the terms of her visitor’s visa by
staying in the country, and had then engaged in criminal
conduct. Moreover, that conduct provided the basis for her
entire asylum claim. The IJ also gave very little weight to
Wang’s marriage to a United States citizen because she had
been living with Guo until her arrest and had never lived in
the same state as her spouse. Thus, the IJ determined that
Wang’s husband was unlikely to suffer any undue hardship
on account of her removal.
Based on his conclusion that Wang’s fear of persecution
was not linked to one of the five protected grounds in the
INA, the IJ also denied her request for withholding of
removal under section 241(b)(3), which requires an alien to
demonstrate that her life or freedom would be threatened
“because of [her] race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3) (emphasis supplied). The IJ then rejected
Wang’s claim for relief under the CAT. Although the CAT
does not require a petitioner to show that she fears harm on
account of one of the five protected grounds, the immigra-
tion regulations require that the harm be inflicted by or
with the consent of a public official or individual acting in
an official capacity. See 8 C.F.R. § 208.18(a)(1). Since Wang
No. 05-1344 7
feared harm only from her codefendants, who are private
citizens, the IJ concluded that she was ineligible for relief
under the CAT. Finally, the IJ relied on Wang’s criminal
record to conclude that she was ineligible for voluntary
departure. The BIA affirmed without opinion, and Wang
petitions this court for review.
II.
On appeal, Wang challenges only the IJ’s denial of her
request for asylum. Thus, we need not revisit the IJ’s
conclusion that she was ineligible for withholding of
removal or relief under the CAT. See Vasile v. Gonzales, 417
F.3d 766, 767-68 (7th Cir. 2005) (petitioner abandoned
requests for withholding of removal and relief under the
CAT by failing to raise them in opening brief). Where, as
here, the BIA summarily affirms the decision of the IJ, we
review the IJ’s decision directly to determine if it is sup-
ported by substantial evidence. Feto v. Gonzales, 433 F.3d
907, 911 (7th Cir. 2006); Sosnovskaia v. Gonzales, 421 F.3d
589, 592 (7th Cir. 2005). Under the substantial evidence
test, we will affirm the IJ’s decision if it is “ ‘supported by
reasonable, substantial, and probative evidence on the
record considered as a whole,’ ” I.N.S. v. Elias-Zacarias, 502
U.S. 478, 481 (1992), and will overturn it only “if the record
compels a contrary result,” Tapiero de Orejuela v. Gonzales,
423 F.3d 666, 671 (7th Cir. 2005) (citation and internal
quotations omitted).
To qualify for asylum, an alien must demonstrate that she
is a refugee, which is defined in the INA as one “who is
unable or unwilling” to return to her 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); see also Hernandez-Baena v. Gonzales, 417
8 No. 05-1344
F.3d 720, 722-23 (7th Cir. 2005). Thus, Wang must make
two showings. First, she must establish that she
has suffered past persecution or has a well-founded fear
of future persecution. Second, she must show that the
persecution she endured (or fears she will endure) is “on
account of” one of the five statutorily protected grounds. See
Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003); Tamas
Mercea v. Reno, 222 F.3d 417, 423 (7th Cir. 2000). Once an
applicant has demonstrated her eligibility for asylum, the
IJ ultimately retains discretion to deny relief. See 8 U.S.C.
§ 1158(b)(1)(A) (“Secretary of Homeland Security or the
Attorney General may grant asylum to an alien who has
applied for asylum.”) (emphasis added); I.N.S. v. Cardoza-
Fonseca, 480 U.S. 421, 444 (1987) (Aliens who “can only
show a well-founded fear of persecution are not entitled to
anything, but are eligible for the discretionary relief of
asylum.”) (emphasis in original); Groza v. I.N.S., 30 F.3d
814, 821 (7th Cir. 1994) (same).
Wang’s primary argument on appeal is that “the defini-
tion of ‘refugee’ should be construed to cover” her. She
asserts without elaboration that she should be eligible for
asylum because she now fears harm on account of her
assistance to the United States government. But instead of
explaining how her fear of harm is linked to one of the
grounds in the INA, Wang argues simply that in rejecting
her claim the IJ defined refugee and persecution too “rig-
idly.” She argues that instead of focusing on whether she
could demonstrate her membership in a social group, the IJ
should have focused on this court’s definition of persecution
as “punishment or the infliction of harm for political,
religious, or other reasons that this country does not
recognize as legitimate.” E.g., Lhanzom v. Gonzales, 430
F.3d 833, 848 (7th Cir. 2005) (citation and internal quota-
tions omitted).
Wang’s focus on the definition of “persecution” is unhelp-
ful because, as set forth above, demonstrating persecution
No. 05-1344 9
is only part of the equation. The more critical element to
Wang’s claim is the one that she fails to address: the
statutory requirement that the persecution be on account of
one of the five enumerated grounds. As the IJ recognized in
his opinion, it may be that Wang’s codefendants wish to
harm her.1 It is doubtful whether any harm they may
inflict, based as it is on personal animosity, could amount
to “persecution.” See Hor v. Gonzales, 400 F.3d 482, 485 (7th
Cir. 2005) (“Persecution is something a government does,
either directly or by abetting (and thus becoming responsi-
ble for) private discrimination by throwing in its lot with
the deeds or by providing protection so ineffectual that it
becomes a sensible inference that the government sponsors
the misconduct.”), rev’d on reh’g on other grounds, 421 F.3d
497 (7th Cir. 2005). We need not, however, decide that issue
because even if Wang could demonstrate a well-founded
fear of persecution, her claim would still falter at the “on
account of” inquiry. Although we are sympathetic to the fact
that Wang’s life may indeed be in danger, she is still
obligated to demonstrate the required nexus between her
fear of harm and the grounds enumerated in the INA. See
Tamas-Mercea, 222 F.3d at 425 (“[T]he asylum statute
requires more than simply persecution; it requires persecu-
tion ‘on account of’ one of the five protected statutory
grounds.”) (internal quotations omitted); Marquez v. I.N.S.,
105 F.3d 374, 380 (7th Cir. 1997) (“Without a firm footing
in one of the five protected bases, asylum law offers no
succor.”); cf. Elias-Zacarias, 502 U.S. at 483-84 (plain
1
Since Wang’s claim ultimately hinges on whether or not any
persecution feared would be “on account” of a protected ground, it
is unnecessary to decide whether she has established a well-
founded fear. We note, however, that except in the “most ex-
treme circumstances” threats alone are insufficient to demon-
strate persecution. See Mitreva v. Gonzales, 417 F.3d 761, 764 (7th
Cir. 2005).
10 No. 05-1344
language of asylum statute requires petitioner to show
persecution “because of . . . political opinion”) (emphasis in
original). Her failure to do so dooms her claim.
Our conclusion is reinforced by counsel’s admission at
Wang’s hearing that her claim is essentially a personal
dispute. When the IJ questioned Wang’s counsel as to
the basis of Wang’s claim for asylum, he explained that
Wang based her claim on her cooperation with authorities
here in the United States. Wang’s counsel continued,
saying, “. . . what would the basis be? It sounds like a
personal retribution or personal grudge.” This circuit and
others, however, have repeatedly held that a personal
dispute cannot give rise to a claim for asylum. See Marquez,
105 F.3d at 380 (“A personal dispute, no matter haw nasty,
cannot support an alien’s claim of asylum.”); see also Iliev v.
I.N.S., 127 F.3d 638, 642 (7th Cir. 1997) (same); Setiadi v.
Gonzales, 437 F.3d 710, 713 (8th Cir. 2006) (“[A] personal
dispute without connection to government (in) action is not
usually grounds for a finding of past persecution.”); Romilus
v. Ashcroft, 385 F.3d 1, 6 (1st Cir. 2004) (“The INA is not
intended to protect aliens from violence based on personal
animosity.”); Abdille v. Ashcroft, 242 F.3d 477, 494 (3d Cir.
2001) (“[A]cts of private violence . . . fall short of persecution
on account of race, nationality, or membership in a particu-
lar social group.”). As the BIA explained, “an alien who
succeeds in establishing a well-founded fear of persecution
will not necessarily be granted asylum. He must also show
that the feared persecution would be on account of his race,
religion, nationality, membership in a particular social
group, or political opinion. Thus, for example, aliens fearing
retribution over purely personal matters . . . would not
qualify for asylum. Such persons may have well-founded
fears, but such fears would not be on account of their race,
religion, nationality, membership in a particular social
group, or political opinion.” Matter of Mogharrabi, 19 I. &
N. Dec. 439, 446 (BIA 1987), abrogated on other grounds by
No. 05-1344 11
Pitcherskaia v. I.N.S., 118 F.3d 641, 647-48 (9th Cir. 1997).
Just so with Wang.
It is undisputed that Guo and Chu wish to harm Wang.
Wang, however, admits that they do not seek to do so “on
account of” her membership in a particular group or for any
political opinion, but rather for her decision to cooperate
with the government in an attempt to reduce her own
sentence. See Saldarriaga v. Gonzales, 402 F.3d 461, 468
(4th Cir. 2005) (any persecution petitioner “faces is due to
the fact of his cooperation with the government, rather than
the content of any opinion motivating that cooperation”).
Despite this admission, Wang provides no explanation as to
how we could interpret the statute in a way to include her
claim, nor does she offer any authority to support her
assertion that the IJ “should have treated [her] as a ‘refu-
gee’ by extending the application of the law.” See, e.g.,
United States v. Turcotte, 405 F.3d 515, 536 (7th Cir. 2005)
(“In this circuit, unsupported and undeveloped arguments
are waived.”). Although Wang’s situation is unfortunate, it
is one that she presumably shares with countless other
criminal defendants here in the United States. Like many
other criminal defendants, Wang chose to cooperate with
prosecutors in the hope of receiving a reduced sentence,
which she did. That choice carries the inherent risk that an
angry codefendant will seek retribution. See United States
v. Jones, 34 F.3d 495, 500 (7th Cir. 1994) (recognizing that
defendant’s cooperation posed “considerable risk” to defen-
dant but that he was “rewarded handsomely for it”). We do
not rule out the possibility that there may be some circum-
stance in which an applicant’s assistance to the United
States puts her at risk of harm on account of a statutorily
protected ground, but Wang has not argued as much here,
and we are not at liberty to rewrite the statute so as to
12 No. 05-1344
include her claim.2 Substantial evidence thus supports
the IJ’s conclusion that Wang is ineligible for asylum.
In light of our conclusion that Wang has failed to link the
treatment she fears to one of the statutorily protected
grounds, we need not reach the IJ’s discretionary denial of
asylum. Nor do we address his alternate bases for deny-
ing asylum: first, that the Chinese authorities could
adequately protect Wang if necessary, and second, that
Wang would be able to relocate to avoid contact with Guo
and Chu. We note, however, that Wang makes no men-
tion of these independent reasons the IJ gave for deny-
ing her claim, thus abandoning any challenge to the
conclusions that she may have had. See Vladimirova v.
Ashcroft, 377 F.3d 690, 694 n.1 (7th Cir. 2004).
III.
For the foregoing reasons, we DENY the petition for
review.
2
We note that there are alternatives to asylum for an alien
placed in danger by virtue of her cooperation with the govern-
ment. Although it did not do so in this case, the government
may seek an “S-visa” on behalf of an alien cooperating in a
criminal investigation. See 8 U.S.C. § 1101(a)(15)(S)(i); United
States v. Zendeli, 180 F.3d 879, 881 (7th Cir. 1999) (“The govern-
ment also agreed to recommend to Immigration officials that
[defendants] receive S-visas to help them avoid deportation . . .
after they completed their sentences.”).
No. 05-1344 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-28-06