Li Sheng Wu v. Holder

United States Court of Appeals
For the First Circuit
No. 13-1244
LI SHENG WU,
Petitioner,
v.
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Joshua Bardavid and Bardavid Law, on brief for petitioner.
Deitz P. Lefort, Trial Attorney, Office of Immigration
Litigation, Civil Division, Stuart F. Delery, Acting Assistant
Attorney General, Civil Division, and Derek C. Julius, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.
December 18, 2013
TORRUELLA, Circuit Judge. Petitioner Li Sheng Wu ("Wu"),
a native and citizen of the People's Republic of China, challenges
the Board of Immigration Appeals ("BIA") order denying his motion
to reopen removal proceedings. Specifically, Wu disputes the BIA's
finding that he failed to demonstrate prima facie eligibility for
relief. After careful consideration, we deny Wu's petition for
review.
I. Background
Wu entered the United States without inspection on or
before February 3, 2006. On that day, the Department of Homeland
Security apprehended Wu in Texas and served him with a Notice to
Appear before the Immigration Court. The Notice charged Wu with
being subject to removal pursuant to 8 U.S.C. § 1182(a)(6)(A)(i).
Wu appeared before an Immigration Judge ("IJ") on April 19, 2006,
and the IJ found that Wu had admitted the allegations against him
and conceded removability.
On June 28, 2006, Wu submitted an application for asylum,
withholding of removal, and relief pursuant to the Convention
Against Torture ("CAT"). Wu claimed that he feared persecution due
to China's population control policies. The IJ heard Wu's
testimony and subsequently denied his applications on April 14,
2010, ordering Wu's removal to China. Wu appealed the IJ's
decision to the BIA, which affirmed the denial of relief on
July 26, 2011.
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Wu timely moved to reopen his case on September 19, 2011,
citing changed country conditions. Wu claimed that he had become
a Christian and that the persecution of Christians in China had
worsened since the IJ denied his asylum application in April 2010.
Wu's motion and accompanying affidavit generally described the
Chinese government's restrictions on the practice of religion,
including the requirement that Christians worship in registered
churches rather than unregistered "house churches." Wu also
submitted a certificate of baptism, several online newspaper
articles, a March 2011 report from ChinaAid, and a May 2011 report
from the U.S. Commission on International Religious Freedom. The
reports described the ongoing harassment of Christians in China,
and the articles described a number of topics, including a
government crackdown against an unregistered church in Beijing,
political unrest in China, and the arrests of human rights
advocates.
On June 7, 2012, the BIA denied Wu's motion to reopen
removal proceedings, finding that the evidence Wu provided was
insufficient to establish his prima facie eligibility for any form
of relief. The BIA found that Wu had proffered only evidence that
described the conditions for Christians in China generally. He
failed to provide any evidence that the Chinese government was
aware or was likely to become aware of his religious activities in
the United States. The BIA concluded that, based on the proffered
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evidence, Wu had not shown a reasonable likelihood that he would be
targeted for persecution on account of his religion. Wu's timely
petition for review followed.
II. Analysis
Motions to reopen removal proceedings are generally
disfavored because they run counter to "'the compelling public
interests in finality and the expeditious processing of
proceedings.'" Hang Chen v. Holder, 675 F.3d 100, 105 (1st Cir.
2012) (quoting Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st
Cir. 2007)). Therefore, a BIA decision on a motion to reopen is
accorded deference, and we review it only for abuse of discretion.
Le Bin Zhu v. Holder, 622 F.3d 87, 91 (1st Cir. 2010); Carter v.
I.N.S., 90 F.3d 14, 17 (1st Cir. 1996). This means that we will
uphold the BIA's decision "unless the complaining party can show
that the BIA committed an error of law or exercised its judgment in
an arbitrary, capricious, or irrational way." Le Bin Zhu, 622 F.3d
at 91 (quoting Raza v. Gonzales, 484 F.3d 125, 128 (1st Cir. 2007))
(internal quotation marks omitted). In conducting this review, we
accept the BIA's findings of fact "as long as they are supported by
substantial evidence," and we review legal conclusions de novo.
Smith v. Holder, 627 F.3d 427, 433 (1st Cir. 2010).
Because motions to reopen are governed by a number of
statutory and regulatory provisions, we pause here to briefly
describe the relevant legal landscape before proceeding. By
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statute, "[a]n alien may file one motion to reopen proceedings."
8 U.S.C. § 1229a(c)(7). Such motions must meet two threshold
requirements: 1) they must establish "a prima facie case for the
underlying substantive relief sought" and 2) they must introduce
"previously unavailable, material evidence." Fesseha v. Ashcroft,
333 F.3d 13, 20 (1st Cir. 2003) (quoting INS v. Abudu, 485 U.S. 94,
104 (1988)) (internal quotation marks omitted); 8 C.F.R. § 1003.2.
A petitioner who seeks to establish a prima facie case for asylum
must show that he is unwilling or unable to return to his country
because of "persecution or a well-founded fear of persecution on
the account of race, religion, nationality, membership in a
particular social group, or political opinion." 8 U.S.C. § 1101(a)
(42)(A).
Of importance here, the "well-founded fear" requirement
may be satisfied with evidence of a "reasonable likelihood" of
future persecution, Smith, 627 F.3d at 437, so long as the fear is
"genuine and objectively reasonable." Aguilar-Solís v. I.N.S., 168
F.3d 565, 572 (1st Cir. 1999); 8 C.F.R. § 208.13. Typically, to
show that his fear is objectively reasonable, a petitioner must
produce "credible, direct, and specific evidence supporting a fear
of individualized persecution in the future." Decky v. Holder, 587
F.3d 104, 112 (1st Cir. 2009) (internal quotation marks omitted);
see also Kho v. Keisler, 505 F.3d 50, 54 (1st Cir. 2007) ("Proving
a future threat to life or freedom generally requires
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individualized evidence that the applicant will be 'singled out'
for persecution upon return to his home country.").
Applicants seeking withholding of removal or CAT relief
face even greater hurdles than those seeking asylum.1 See Santosa
v. Mukasey, 528 F.3d 88, 92 n.1 (1st Cir. 2008) ("The standard for
withholding is more stringent than that for asylum. The CAT
standard, in turn, is more stringent than that for withholding of
removal." (internal citation omitted)). For this reason, and
because each argument Wu presses applies equally to each petition,
we focus our analysis only on Wu's asylum claim. If Wu cannot
establish prima facie eligibility for asylum, his requests for
withholding of removal and CAT relief -- with their heightened
requirements -- must also fail. We therefore turn now to Wu's
claim that the BIA abused its discretion by finding that he failed
to establish prima facie eligibility for asylum.
According to Wu, the BIA abused its discretion by
ignoring material evidence. Specifically, Wu claims that the BIA
ignored assertions in his affidavit that he would continue to
practice his faith in China by joining an unregistered church and
openly preaching the gospel. The BIA ignored this evidence, Wu
1
To establish a prima facie case for withholding of removal, the
applicant must show that he or she is "more likely than not to face
persecution" on a protected ground. Zheng v. Gonzales, 416 F.3d
97, 101 n.3 (1st Cir. 2005). For CAT relief, an applicant must
show that it is "more likely than not that [he] would be tortured
if removed." Id.; 8 C.F.R. § 208.16.
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claims, because it only considered the likelihood that Wu's
religious activities in the United States would be discovered, and
it failed to consider whether Chinese authorities were likely to
persecute Wu if he continued his religious activities in China. To
support this claim, Wu points to the BIA's observation that the
evidence "does not indicate that Chinese authorities are aware, or
are likely to become aware, of his practice of Christianity in the
United States." Wu reasons that because the BIA made no similar
statement regarding the possible discovery of his practice of
Christianity in China, it must have erroneously limited the scope
of its analysis. Finally, Wu claims that the BIA's failure to
explain why it chose to so restrict its analysis makes the decision
inadequately reasoned such that it constitutes an abuse of
discretion. See Aponte v. Holder, 683 F.3d 6, 14-15 (1st Cir.
2012) (holding a denial of a motion to reopen based on failure to
make out a prima facie case requires an adequate explanation to
enable review). We disagree.
To begin, we note that the BIA is not required "to
dissect in minute detail every contention that a complaining party
advances," Raza, 484 F.3d at 128, or to discuss each piece of
evidence proffered, Morales v. I.N.S., 208 F.3d 323, 328 (1st Cir.
2000). The BIA need only fairly consider the petitioner's claims
and state its decision "in terms adequate to allow a reviewing
court to conclude that the agency has thought about the evidence
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and the issues and reached a reasoned conclusion." Raza, 484 F.3d
at 128. In this case, the BIA complied with these requirements.
It accurately described Wu's proffered evidence, which it
acknowledged reflected "the longstanding and ongoing problem of
repression of religious freedom in China," before noting that such
evidence was insufficient to merit relief because it "only
describes conditions generally for Christians in China." The BIA
thus concluded that Wu failed to establish prima facie eligibility
for relief because the evidence did not show a reasonable
likelihood that he would be targeted based upon his religion.
Although Wu would have us find that the BIA ignored
evidence that he would be persecuted in China, in actuality, the
record is devoid of evidence connecting the general reports of the
treatment of Christians in China with Wu's own, individualized risk
of future persecution. For example, seven of the newspaper
articles that Wu submitted described a government crackdown on
Shouwang, an unregistered church in Beijing, related to Easter
services in 2011. Notably lacking from the record, however, is
evidence that Wu desired to attend any unregistered church, let
alone Shouwang or a church in Beijing. Additionally, while the
reports from both ChinaAid and the U.S. Commission on International
Religious Freedom describe the longstanding harassment of
Christians in China, they fail to describe conditions that would
compel a finding that Wu himself is likely to face harm. The U.S.
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Commission on International Religious Freedom report notes that
religious persecution in China varies by region and province, and
the ChinaAid report documented only a single instance of
persecution in Wu's home province of Fuijan. Additionally, the
reports also state that the Chinese government has recently granted
some latitude to Christian congregations to operate charitable
programs and that there have been fewer detentions of Christians in
China as of late.
Accordingly, the BIA did not abuse its discretion by
denying Wu's motion to reopen. Wu failed to link general reports
of ongoing persecution with his own individualized risk of future
persecution. See Hang Chen, 675 F.3d at 105 (affirming BIA's
denial of relief where evidence showed "some members and leaders of
the Christian faith had been arrested or harassed by the Chinese
government" but not that petitioner himself risked being so
persecuted upon return to China); Barsoum v. Holder, 617 F.3d 73,
80 (1st Cir. 2010) (denying petition for review of denial of
reopening where applicant failed to connect "evidence of attacks on
other Coptic Christians in Egypt and his own individualized risk of
harm" (quotations omitted)); Tawadrous v. Holder, 565 F.3d 35, 39
(1st Cir. 2009) (denying petition for review of BIA decision where
petitioner "failed to offer any connection between this secondary
evidence of episodic conflict and his own individualized risk of
harm" (quotations omitted)).
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As the BIA correctly concluded, Wu's proffered evidence
failed to establish a reasonable likelihood that he individually
would be targeted for harm on account of his religion. Cf. Seng v.
Holder, 584 F.3d 13, 19 (1st Cir. 2009) (finding asylum-seeking
petitioner's reliance "chiefly on generalized reports of country
conditions" was "misplaced"). Thus, Wu did not establish prima
facie eligibility for any form of relief, and the BIA acted within
its discretion in denying his motion to reopen.
III. Conclusion
In sum, the record shows that the BIA did not, in fact,
fail to consider material, individualized evidence of the
likelihood of persecution upon Wu's return to China; rather, Wu
failed to present any such evidence. He thus failed to establish
prima facie eligibility for asylum, and given the more stringent
standards for withholding of removal and CAT relief, those claims
must also fail. Under these circumstances, we find that the BIA's
review of the evidence, application of the law, and explanation of
its decision were adequate. We find no abuse of discretion in the
BIA's denial of Wu's motion for failure to establish prima facie
eligibility for any form of relief.
The petition for review is denied.
Denied.
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