Zhao Di Chen v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14666 ELEVENTH CIRCUIT
JUNE 9, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A093-409-812
ZHAO DI CHEN,
Petitioner-Appellant,
versus
U.S. ATTORNEY GENERAL,
Respondent-Appellee.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 9, 2010)
Before BIRCH, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Zhao Di Chen, a native and citizen of China, seeks review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
order denying his application for asylum, withholding of removal, and relief under
the United Nations Convention Against Torture, and other Cruel, Inhuman, and
Degrading Treatment or Punishment (“CAT”). INA §§ 208, 241; 8 U.S.C.
§§ 1158, 1231; 8 C.F.R. § 208.16(c). After review of the record and the parties’
briefs, we DENY the petition.
I. BACKGROUND
On 23 April 2007, the Immigration and Naturalization Service (“INS”)
served Chen with a notice to appear, charging him with removability under INA
§ 212, 8 U.S.C. § 1182, as an alien present in the United States without being
admitted or paroled. Administrative Record (“AR”) at 708. At an initial hearing,
Chin admitted the allegations in the notice to appear and conceded removability.
Id. at 76. On 30 May 2007, Chen filed an application for asylum, withholding of
removal, and CAT relief, alleging that he feared persecution if returned to China
because he had violated China’s family planning policy.1 Id. at 563-64.
1
Although Chen also alleged past persecution based on his violation of China’s family
planning policy, he conceded at his removal hearing that he suffered no past persecution and
agreed that his claim was limited to a well-founded fear of future persecution based on both his
violation of China’s family planning policy and his practice of Falun Gong. See id. at 94-96.
Because Chen waived his claim of past persecution before the IJ and thus failed to exhaust
administrative remedies with respect thereto, we lack jurisdiction to consider it. See
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam) (“We
lack jurisdiction to consider a claim raised in a petition for review unless the petitioner has
exhausted his administrative remedies with respect thereto.”).
2
The record reflects that Chen is from Fouchou City in the Fujian Province
and had two daughters2 with his first wife, who thereafter was forcibly sterilized by
Chinese family planning officials. Id. at 102-04, 568. Chen and his first wife
divorced in October 1998, and he married his current wife the following year. Id.
at 104-06, 568. When Chen’s wife became pregnant, he sent her to live at a
relative’s home because he had not obtained a permit to have a third child. Id. at
107, 568-69. Family planning officials learned of his wife’s pregnancy, forced her
to have an abortion, and, two weeks later, required her to be fitted with an inter-
uterine device (“IUD”) to prevent future pregnancies. Id. at 107-08, 569. Chen’s
wife subsequently had the IUD removed at a private clinic and became pregnant
for the second time in May 2004. Id. Fearing she would be forced to terminate the
pregnancy, Chen arranged to have his wife smuggled into the United States, where
she suffered a miscarriage. Id. at 108-09, 569. After Chen’s arrival in the United
States in 2006, his wife became pregnant for the third time and gave birth to a
daughter in February 2007. Id. at 109-11, 569-70. Chen believed that if he
returned to China, he would be jailed and forced to undergo a vasectomy because
2
According the 2007 Country Report, China’s family planning law “grants married
couples the right to have one birth and allows eligible couples to apply for permission to have a
second child if they meet conditions stipulated in local and provincial regulations.” Id. at 319.
Chen does not argue that the birth of his second daughter was illegal, but that the birth of his
third child in the United States would be viewed by family planning authorities as a violation of
the family planning law. Because Chen appears to base his asylum claim only on the birth of his
third child, we will assume for purposes of this petition for review that the birth of Chen’s
second daughter was authorized.
3
he has three children. Id. at 111-12, 570.
Chen also testified at the removal hearing that he would be persecuted if
returned to China on account of his involvement with Falun Gong,3 which he did
not practice in China but began practicing after arriving in the United States. Id. at
112, 115. He stated that he practiced privately, “in [his] room,” two or three times
a week, and would continue to practice Falun Gong if he were returned to China.
Id. at 113, 115, 136. He further testified that he attended a Falun Gong
demonstration in Washington in 2008, but remained on “the bus” and did not
actively participate in the demonstration. Id. at 113, 137. According to Chen, the
Chinese government is “against Falun Gong” and will arrest, jail, and beat its
adherents. Id. at 114-15.
In addition to Chen’s asylum application and removal hearing testimony, the
IJ also considered the U.S. Department of State’s 2007 Profile of Asylum Claims
and Country Conditions (“2007 Profile”) and 2007 Country Report on Human
Rights Practices in China (“2007 Report”). See id. at 250-371. With respect to
China’s population control policy, the 2007 Profile noted the following. Under the
3
According to the 2007 Asylum Profile for China (“2007 Profile”), Falun Gong is a
movement that “blends aspects of Taoism, Buddhism, and the meditation techniques and
physical exercises of qigong (a traditional Chinese exercise discipline) with the teachings of
Falun Gong founder Li Hongzhi.” Id. at 259. The 2007 Profile notes that, “[d]espite the mystical
nature of Li’s teachings, Falun Gong has no clergy or places of worship, and does not represent
itself as a religion.” Id.
4
government’s family planning law, couples who have an unapproved child must
pay a “social maintenance or compensation fee,” while couples who comply with
the policy receive rewards in the form of monthly stipends and preferential
medical, food, and educational benefits. Id. at 272, 296, 306. “[S]ocial and
economic pressures are common,” and in the Fujian Province specifically,
“unspecified ‘remedial measures’” are used to deal with unauthorized pregnancies.
Id. at 272. Additional penalties “may include loss of government-subsidized health
benefits, job loss or demotion, loss of promotion opportunity for one or more
years, . . . and other administrative penalties.” Id. at 272, 306-08. While official
government policy prohibits forcible sterilizations and abortions, they continue to
be reported in some areas, and “[h]undreds of asylum applicants from Fujian claim
that forced abortions and sterilizations continue to the present day.” Id. 273, 275.
According to one former family planning officer, a birth planning office in the
Fujian Province was performing involuntary abortions and sterilizations as late as
1998. Id. at 275. The Fujian Provincial Birth Planning Committee (“FPBPC”)
maintained, however, that “the provincial government only imposes economic
penalties on families that do not comply with the birth planning law” and “does not
impose criminal penalties or physically coercive methods to ensure compliance.”
Id. at 276. The FPBPC acknowledged that there were “isolated” incidents of
forced abortion and sterilization in the 1980’s and early 1990’s, but insisted that no
5
cases of forced abortion or sterilization have been reported in the ten years
preceding the 2007 Profile and that all men and women who undergo surgical
procedures are now required to provide informed, written consent. Id. at 275.
Local physicians confirmed that they had seen no evidence of forced abortions or
sterilizations among their patients from Fujian Province since the 1980’s, and
Consulate General officials who visited Fujian Province reported that although
“coercion through public and other pressure has been used,” they were aware of no
cases in which physical force was used in connection with abortion or sterilization.
Id. Consulate General interviews with visa applicants from Fujian Province also
revealed “no evidence of forced abortion.” Id. at 275-76.
Appendices to the 2007 Profile contain the national and regional regulations
concerning family planning. See id. at 289-310. The regional regulations for
Fujian Province, which permit each family to have one child, and in certain
circumstances, two, provide incentives for using contraception and economic
penalties for non-compliance with the region’s population development plan. Id. at
305-07. According to a Fujian Provincial Government response to the U.S.
Consulate General, the government does not employ forcible IUD insertion or
sterilization for violations of the population control policy. Id. at 310.
The 2007 Report, which contains largely cumulative evidence, notes that the
Chinese government’s “birth limitation policies retain harshly coercive elements,”
6
including strict penalties that “leav[e] some women little choice but to abort
pregnancies.” Id. at 319. In addition to these “strict penalties,” China’s population
control policy relies on education, propaganda, economic incentives, and coercive
measures like job loss or demotion and social compensation fees. Id. at 320. The
2007 Report also noted that while the law “standardizes the implementation of the
government’s birth limitation policies[,] . . . enforcement varied significantly from
place to place.” Id. at 319.
With respect to the practice of Falun Gong, the 2007 Report noted that the
Chinese government considers Falun Gong a “cult” and has prohibited persons
from publicly engaging in Falun Gong activity. Id. at 329. Falun Gong sources
reported that at least 6,000 Falun Gong practitioners were sent to prison, and
100,000 were sent to reeducation-through-labor camps. Id. While “core leaders”
of Falun Gong were singled out for particularly harsh punishment, most
practitioners were punished administratively. Id. Administrative punishments
included reeducation-through-labor camps, renunciation of Falun Gong, and
mandatory anti-Falun-Gong education sessions. Id. at 329-30.
Like the 2007 Report, the 2007 Profile reported that the Chinese government
“continued to wage a severe campaign against Falun Gong,” punishing not only
those who engage in Falun Gong practices, but in some cases, those who admit
belief in the movement “or simply refus[e] to recant their beliefs or condemn the
7
movement” as well. Id. at 259. The 2007 Profile further noted that “[t]he mere
belief in Falun Gong, without any public practice of its tenets, has been sufficient
grounds for practitioners to receive punishments ranging from loss of employment
to imprisonment.” Id. While some non-governmental organizations have
documented close to 500 cases of Falun Gong members being detained,
prosecuted, or sentenced to reeducation based on their Falun Gong activities, other
“credible reports suggested the actual number was much higher.” Id. The degree
to which Falun Gong is restricted varies significantly from region to region,
however. Id. at 253.
The IJ ordered Chen removed after finding that while he testified credibly,
he failed to demonstrate a well-founded fear of future persecution based on either
his violation of China’s family planning policy or his limited Falun Gong
involvement. Id. at 66, 70. On appeal to the BIA, Chen argued that the Chinese
government had established a “pattern or practice” of punishing those who violated
the population control policy and that it had the “capacity” and “inclination” to
punish him. Id. at 20. He also argued that he was previously persecuted for
resisting China’s population control policy4 and that he had established a well-
4
As discussed supra, Chen waived before the IJ his claim of past persecution based on
“other resistance” to China’s population control policy. Although the BIA addressed the merits
of this claim in its final decision, we are still without jurisdiction to consider it on petition for
review. See Amaya-Artunduaga, 463 F.3d at 1250.
8
founded fear of persecution based on his adherence to Falun Gong. Id. at 21-23.
Finally, Chen asserted that he was entitled to withholding of removal and relief
under CAT. Id. at 23-25.
The BIA first found that Chen failed to establish a well-founded fear of
future persecution based on his involvement with Falun Gong because he was a
“casual practitioner” and not one of the movement’s “core leaders.” Id. at 3-4.
The BIA next found that Chen failed to establish a well-founded fear of future
persecution based on the birth of his third daughter in the United States because the
documentary evidence did not compel the conclusion that there was a “pattern or
practice of persecution by the Chinese government against applicants on account of
the birth of children in the United States” or “that forcible sterilizations are
mandated in the [Fujian Province] after the birth of a third child.” Id. at 4.
Inasmuch as Chen failed to meet his burden of proof with respect to asylum, the
BIA found that he necessarily failed to meet his burden of proof with respect to
withholding of removal. Id. at 5. Finally, the BIA concluded that Chen failed to
present facts demonstrating that it was more likely than not that he would be
tortured if returned to China. Id. The BIA dismissed Chen’s appeal accordingly,
and this petition for review followed.
II. DISCUSSION
Where, as here, the BIA issues its own decision and does not adopt the IJ’s
9
opinion, we review the BIA’s decision only. Rodriguez Morales v. U.S. Att’y Gen.,
488 F.3d 884, 890 (11th Cir. 2007) (per curiam). We review the BIA’s legal
conclusions de novo and its factual findings under the substantial evidence test,
which requires us to affirm the BIA’s decision if it is “supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Mejia v.
U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007) (quotation marks and
citation omitted). Under this highly deferential standard, we view the record in the
light most favorable to the BIA’s decision and are bound by that decision “unless
[a] reasonable adjudicator would be compelled to conclude to the contrary.”
Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc) (citing 8
U.S.C. § 1252(b)(4)(B)). Accordingly, “even if the evidence could support
multiple conclusions, we must affirm the agency’s decision unless there is no
reasonable basis for that decision.” Id. at 1029.
To establish asylum eligibility, the petitioner bears the burden of proving
with “credible, direct, and specific evidence in the record” that he suffered past
persecution, or has a “well-founded fear” of future persecution, on account of
“race, religion, nationality, membership in a particular social group, or political
opinion.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (2005) (citation
omitted); 8 C.F.R. § 208.13(b) (2010). An alien who has not shown past
persecution may therefore still be entitled to asylum if he can prove that he has
10
“(1) a subjectively genuine and objectively reasonable fear of persecution that is
(2) on account of a protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229,
1236 (11th Cir. 2006) (quotation marks and citations omitted). The alien may
satisfy the subjective component by offering credible testimony that he genuinely
fears persecution, and may satisfy the objective component by presenting “specific,
detailed facts showing a good reason to fear that he . . . will be singled out for
persecution” on account of a statutorily listed factor. Al Najjar v. Ashcroft, 257
F.3d 1262, 1289-90 (quotation marks, alteration, and citation omitted) (11th Cir.
2001); see 8 C.F.R. § 208.13(b)(2); Mejia, 498 F.3d at 1256 (alien “need only
show that there is a reasonable possibility of suffering such persecution if he or she
were to return to that country”) (quotation marks, alteration, and citation omitted).
An applicant’s credible testimony may be sufficient, without corroboration, to
sustain this burden. 8 U.S.C. § 1158(b)(1)(B)(ii) (2010); 8 C.F.R. § 208.13(a).
A. Well-founded Fear of Persecution Based on Violation of Population Control
Policy
The BIA has held that in order to qualify for asylum based on violation of
China’s population control policy, the alien must show: (1) that the birth(s)
“violated family planning policies in that alien’s local province, municipality, or
other locally-defined area,” and (2) “that current local family planning enforcement
efforts would give rise to a well-founded fear of persecution because of the
11
violation.” In re J-H-S-, 24 I. & N. Dec. 196, 198 (BIA 2007).
We need not decide whether the birth of Chen’s third child in the United
States violates an established local policy because even assuming Chen can meet
his first burden under the above test, he cannot meet his second burden of showing
that such a violation “would be punished in the local area in a way that would give
rise to an objective fear of future persecution.” Id. at 199. The record in this case
reflects that while China’s family planning law retains coercive elements,
monetary penalties, rather than forcible medical procedures, are the predominant
means of enforcing the law in Fujian Province. Such enforcement efforts, insofar
as they result only in “moderate economic impact,” would not provide the basis for
a well-founded fear of persecution. In re J-W-S-, 24 I. & N. Dec. 185, 191, 193-94
(BIA 2007) (analyzing similar documentary evidence, including the 2007 Profile,
and concluding that “[a]t most, the evidence . . . suggest[ed] that the applicant and
his wife may face sanctions and penalties upon returning to China because of the
births of their United States citizen children,” and thus “fail[ed] to establish that
any sanctions imposed on parents of foreign-born children would rise to the level
of persecution”). See also J-H-S-, 24 I. & N. Dec. at 202-03 (alien, who fathered
two children in the Fujian Province before fleeing to the United States, could not
prove that he would be punished in the local area in a way that would give rise to
an objective fear of future persecution because the record, including the 2005 and
12
2006 Country Reports as well as the 2007 Profile, “lack[ed] persuasive evidence”
that the birth of alien’s second child “would trigger family planning enforcement
efforts that would rise to the level of persecution”). Although the documentary
evidence submitted in this case cites reports of forced sterilizations from Fujian
Province, the record as a whole indicates that China’s population control policy is
largely dependent upon economic incentives and penalties and thus does not
compel the conclusion that there is a pattern or practice in Fujian Province of
forcibly sterilizing men like Chen or that Chen personally faces forced sterilization
if returned to China. See Adefemi, 386 F.3d at 1027. Accordingly, we will not
disturb the BIA’s conclusion that Chen failed to establish a well-founded fear of
persecution based on his alleged violation of China’s population control policy.
See id. at 1029.
B. Well-founded Fear of Persecution Based on Involvement in Falun Gong
Substantial evidence supports the BIA’s conclusion that Chen is not entitled
to relief based on his practice of Falun Gong. In Zheng v. U.S. Att’y Gen., 451
F.3d 1287, 1291-92 (11th Cir. 2006) (per curiam), we determined that a limited
practice of Falun Gong, without more, is insufficient to establish a well-founded
fear of persecution on a protected ground. The record in this case reflects that
Chen is not a “core leader” of the Falun Gong movement and contains no evidence
that Chinese authorities are even aware of Chen’s Falun Gong practice in the
13
United States. The record thus does not compel the conclusion that Chen will be
singled out for persecution based on his involvement with Fulan Gong if returned
to China. See id. at 1292.
C. Eligibility for Withholding of Removal and CAT Relief
To qualify for withholding of removal under the INA, an applicant must
show that it is “more likely than not” that he will be persecuted or tortured upon
returning to his home country. Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218
(11th Cir. 2002) (per curiam) (quotation marks and citation omitted); see 8 C.F.R.
§ 208.16(b)(2). To qualify for CAT relief, an applicant must demonstrate that it is
“more likely than not” that he will be tortured upon his return to the proposed
country of removal.5 D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11th Cir.
2004); 8 C.F.R. 208.16(c)(2). Inasmuch as Chen has not satisfied the less stringent
standard for establishing asylum eligibility, his claims for withholding of removal
5
Torture is defined as:
[A]ny act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for
such purposes as obtaining from him or her or a third person
information or a confession, punishing him or her for an act
he or she or a third person has committed or is suspected of
having committed, or intimidating or coercing him or her or
a third person, or for any reason based on discrimination of
any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.
Id. at 819-20 (citing 8 C.F.R. § 208.18(a)(1)).
14
under the INA and CAT relief necessarily fail. See Zheng, 451 F.3d at 1292; see
also Forgue, 401 F.3d at 1288 n.4 (noting that where a petitioner “fail[s] to
establish a claim of asylum on the merits, he necessarily fails to establish eligibility
for withholding of removal or protection under CAT”).
III. CONCLUSION
Chen petitions us for review of the BIA’s dismissal of his appeal from the
IJ’s denial of asylum, withholding of removal, and CAT relief. Because the
evidence does not compel a finding that Chen has a well-founded fear of future
persecution based on his violation of family planning laws or his involvement with
Falun Gong, we DENY the petition.
PETITION DENIED.
15