Dian Zheng Jiang v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 5, 2005
No. 04-15394 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A78-743-443
DIAN ZHENG JIANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(May 5, 2005)
Before CARNES, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Dian Zheng Jiang, a Chinese national, petitions for review of the Board of
Immigration Appeals’s (“BIA’s”) decision adopting and affirming the Immigration
Judge’s (“IJ’s) order of removal and denial of his asylum, withholding of removal,
and United Nations Convention Against Torture (“CAT”) claims. Jiang argues on
appeal that (1) the IJ failed to make a credibility determination supported by
substantial evidence, (2) the IJ’s finding that he Jiang did not qualify for
withholding of removal or CAT relief was unsupported by substantial evidence,
and (3) the IJ violated his due process rights by failing to consider his submitted
evidence. For the reasons set forth more fully below, we deny Jiang’s petition in
part, and dismiss in part for lack of jurisdiction.
Jiang entered the United States sometime between January 1, 1998, and
October of 1999, and was issued two different notices to appear, served on Jiang
on November 21, 2002, charging Jiang with removability under INA
§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being present in the United
States without being admitted or paroled or arriving in the United States at a time
or place other than as designated by the Attorney General.1 On March 7, 2003,
Jiang filed an application for asylum and withholding of removal, alleging
persecution on account of his political opinion, and relief under CAT.
1
The notices to appear contained differing information about Jiang’s date of entry into
the United States. Jiang’s application for asylum listed his entry date as October 1999, which he
repeated in his testimony at the hearing.
2
Jiang’s application for asylum and withholding of removal alleged the
following: (1) he would be subject to an excessive fine and severe punishment,
including torture, if returned because he had illegally departed from China; (2)
changed circumstances in the imminence of Jiang’s fear of persecution was the
reason his application was filed more than one year after his arrival in the United
States; (3) Jiang’s sister gave birth to a girl in 1995; (4) in 1997, his sister became
pregnant again without seeking the government’s permission, a violation of
China’s family planning laws; (5) his sister was found by the government and
forced to undergo an abortion; (6) Jiang and his family were implicated for trying
to hide his sister and opposing the family planning policy, prompting Jiang to flee
China; and (7) China tortures, for intelligence reasons, repatriated citizens to
extract information about the United States’ asylum process.
Included in the administrative record was the State Department’s China
Country Report on Human Rights Practices, issued March 31, 2003. Relevant to
Jiang’s claim, the Chinese government implemented a new “Population and Family
Planning” law on September 1, 2002, intending to standardize the implementation
of the “birth limitation” policies in the local provinces. The new law required
counties to use quotas or other measures to limit the total number of births in each
county, as well as requiring married couples to apply for permission to have a
second child if they meet the stipulated requirements of the local provinces, which
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sometimes requires as many as four years between pregnancies. China’s
population control policy relies on education, propaganda, and economic
incentives, as well as more coercive measures such as the threat of job loss or
demotion, and those who have unapproved children are subject to a “social
compensation fee.” In at least one province, rules state “unplanned pregnancies
must be aborted immediately.” However, the central government policy formally
prohibits the use of physical coercion to compel persons into abortion, and under
the “state compensation law,” citizens may sue officials who exceed their authority
in implementing birth planning policy.
The record also contained an April 2003 “China Country Assessment,”
compiled by the United Kingdom for background purposes in the U.K.’s asylum
process. That report stated, in relevant part, that “the act of exiting mainland China
without permission is an offense. If this is the only unlawful act committed by the
emigrant, then they are punished under Article 14 of the Law of the People’s
Republic of China on the Exit and Entry of Citizens (1981) and thus ‘may be given
a warning or placed in detention for not more than ten days by a public security
organ.’” However, it was also noted that an overlapping article permitted fines to
be levied at varying rates depending on the locality, and that “the Chinese
Government does not generally mistreat returnees, unless the person has been
deported to China more than once.” That report also indicated a trend toward
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using fraudulent claims and “hot button” issues to secure asylum. Finally, with
respect to repatriation, the Chinese government accepts the return of its citizens
who entered other countries illegally, generally fining them as punishment.
In addition, the 2003 report indicated that since the 1970's the Chinese
Government has been implementing a range of family planning policies to deal
with increased population and the effects of that increase on the country’s
resources and infrastructure. These policies are implemented through “education,
propaganda, and a combination of incentives such as health subsidies and financial
bonuses, and disincentives, such as additional taxes and legal discrimination. . . .
Disciplinary measures against those who violate the policy include fines,
withholding of social services, demotion, and other administrative punishments
that sometimes result in loss of employment,” as well as fines. The government
opposes the use of force or coercion in implementing family planning regulations,
although “officials have acknowledged that there have been instances of forced
abortions and sterilizations.” Finally, the report noted that the province of “Fujian”
was “lax” in implementing the policy.2
The record also included a Canadian summary of a “fact-finding” mission
2
It appears from the record that Jiang’s parents live in Fuzhou City, Fujian Province in
China, and Jiang’s testimony was that, at the time his sister was forced to have an abortion in
1997, she was living with him and his parents. Thus, Fujian Province is specifically referenced
where relevant.
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indicating that Fujian is less effective in implementing the “one child” policy than
other parts of China. It was surmised that local authorities “have lacked the
capacity or will to effectively implement the . . . birth control policy.” The report
further stated that “[f]orced abortion and forced sterilization are reportedly not
tolerated now, although local officials acknowledge there were problems with this
in the past.”
Finally, Jiang submitted a letter written by his parents, who wrote that Jiang
had helped his sister resist several “village cadres” who sought to force his sister to
have an abortion. As a result, they wrote that they feared for their son’s well-being
and smuggled him to the United States in August 1999. They requested that Jiang
be granted asylum because, if returned to China, Jiang would be fined, beaten
while interrogated, and imprisoned.
Jiang conceded to the allegations and charge of removability at his hearing.
As noted above, Jiang indicated that he came to the United States in October of
1999, arriving in Los Angeles by boat. When asked about his problems with the
Chinese government, Jiang stated that he was oppressed because of a family
planning matter involving his sister, who gave birth in 1995 and then got pregnant
again in 1997, a violation of the “one child” policy. Specifically, Jiang testified
that government officials came to force his sister into having an abortion, and Jiang
resisted by wrestling with the men, who then threatened him and told him that his
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actions were not right with the government. Afterwards, his parents were worried
because Jiang was the only son in the family, and his parents arranged for Jiang to
exit China illegally. Jiang’s sister was sent to the United States in 2000, and had a
child while in the United States in 2001. She filed an application for political
asylum because the birth of her second child was illegal in China, a claim that was
denied and in the appeals process at the time of Jiang’s hearing. Jiang did not
testify at his sister’s hearing.
As to the specifics of his own claim, Jiang testified that the reason his
parents feared for his safety was because Jiang had disagreed with the government,
which had tried to take his sister. Jiang stated that his parents informed him that
the government had stopped by their house asking for Jiang, but not telling them
the reason why they wished to speak with him. According to Jiang, his parents
“figured out” that the government officials wished to see him because he had
helped his sister resist being taken, and he feared that he would be “beaten up” and
fined. He also feared returning to China because he had exited illegally. When
asked how many “cadre” came to take his sister, Jiang stated that seven or eight
people came to his parents’ house, and that, in spite of his attempt to fight with
them, he was not taken away or arrested. The IJ also questioned Jiang regarding
why he had not previously filed for asylum if he truly believed that, at the time he
arrived in the United States, he had violated Chinese emigration laws and would be
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jailed, beaten, and fined, if returned to China. Jiang replied that he didn’t know
that his conditions met the requirement for political asylum.
Finally, Jiang testified that, if he were returned to China, he would be placed
in jail and “beaten up” because “China is not as democratic as [the United States]
so they usually beat up people.” Jiang also testified that he had never personally
violated China’s family planning laws, and that the reason he had not filed for
asylum earlier was because an attorney had told him that he did not meet the
requirements.
The IJ issued an oral decision, and found that Jiang had failed to file a timely
application for asylum, but for the purposes of the hearing, would apply the lower
burden of proof required for asylum claims. First, the IJ questioned Jiang’s claim
that he would be arrested and tortured for his interference with the individuals who
tried to take his sister for an abortion, taking issue with Jiang’s testimony that
seven to eight individuals came to his home, took his sister after he fought with
them, but did not arrest him at that time. It also noted that (1) his sister’s forced
abortion should have qualified her as a refugee, but her claim for asylum was
denied, and (2) even if his sister had been forced into an abortion, her claim could
not be extended to him. Second, the IJ noted that the Fujian province has been lax
in implementing family planning policies and that the authorities there, at least
most recently, have been using incentives rather than coercion, which is not
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tolerated. Lastly, the IJ found that the reports submitted showed that the Chinese
government accepts repatriation of citizens like Jiang, who have illegally entered
other countries, generally requiring the payment of a fine. Thus, Jiang had failed
to show he had a well-founded fear of persecution or that there was a clear
probability of persecution if he were returned to China. Neither had he shown that
it was more likely than not that he would be tortured.
The BIA, in a written per curiam opinion, adopted and affirmed the decision
of the IJ, stating that the IJ properly determined that Jiang’s claim for asylum was
not timely filed and that he had failed to meet his burden of proof for asylum,
withholding of removal, and protection under the CAT.
On appeal, Jiang first argues that the IJ did not make a specific credibility
determination, and, therefore, all of his testimony should be considered as truthful,
citing the persuasive authority of Hartooni v. INS, 21 F.3d 336 (9th Cir. 1994).
“Credibility determinations . . . are reviewed under the substantial evidence
test.” D-Muhumed v. U.S. Attorney General, 388 F.3d 814, 818 (11th Cir. 2004).
“The trier of fact must determine credibility, and this court may not substitute its
judgment for that of the [IJ] with respect to credibility findings.” Id. (citation
omitted). Furthermore, “an adverse credibility determination alone may be
sufficient to support the denial of an asylum application.” Forgue v. U.S. Attorney
General, No. 03-16394, slip op. at 1390 (11th Cir. Mar. 5, 2005). On the other
9
hand, “an adverse credibility determination does not alleviate the IJ’s duty to
consider other evidence produced by an asylum applicant. That is, the IJ must still
consider all evidence introduced by the applicant.” Id. (emphasis in original).
Here, the IJ “questioned” the account raised by Jiang concerning his role in
interfering with the implementation of the “family planning” policies by fighting
with seven or eight government officials who had come to take his sister for a
forced abortion. Jiang claimed the men would torture or beat him if he returned, a
claim which the IJ found not credible given that he was not arrested by any of the
seven or eight men at the time Jiang confronted and interfered with them. As the IJ
noted, fighting with government officials would “suggest the individuals would
arrest him also. If they had any need for him he should have been arrested on the
spot if it was such a violation.”
The IJ also noted that the documents on the record established that the
Fujian province has been lax in implementing the family planning policies and that
the authorities there used incentive schemes and no longer tolerated coercive
methods, such as forced abortions. It further gave weight to the reports from the
U.K. and Canada showing that asylees who were returned to China were not
subjected to mistreatment. The sum and substance of Jiang’s claim relied solely on
his subjective testimony that he would be beaten if he returned because China is
not democratic and “they usually beat up people.”
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Therefore, we conclude that the IJ’s skepticism regarding Jiang’s claims is
supported by substantial evidence as Jiang failed to provide any evidence other
than his own subjective testimony. In any event, the IJ did not rest his decision
solely on a finding that Jiang’s claims lacked credibility - he also found that,
because Jiang’s claims were weak, he needed to bring forth corroborative
testimony, and his failure to do so meant he could not meet his burden of proof.
We also conclude that Jiang’s reliance on Hartooni is misplaced. In
Hartooni, the Ninth Circuit persuasively held that “the IJ must have a legitimate
articulable basis to question the petitioner’s credibility, and must offer a specific,
cogent reason for any stated disbelief. . . . Absent an explicit finding that a specific
statement by the petitioner is not credible we are required to accept [his] testimony
as true.” Hartooni, 21 F.3d at 342. There, however, “the IJ failed to make clear
findings about [the petitioner’s] specific claims. The [IJ] put forth two separate
general arguments, and then failed to explain which was dispositive of its
conclusion.” Id.In the present case, the IJ explained why he “questioned” Jiang’s claims
regarding the incident wherein he fought with seven or eight government agents,
and further went on the record to demonstrate why other record evidence shed
doubt on the veracity of Jiang’s story. Having explained why Jiang’s claim
appeared weak, the IJ ultimately found that the lack of any corroborative evidence
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prevented Jiang from meeting any of the burden of proofs required for any of the
forms of relief he sought. Therefore, unlike in Hartooni, the IJ’s decision here
explained why the petitioner’s claims were weak and subject to doubt, but went on
to deny Jiang relief because of his failure to provide any corroborating evidence to
bolster his claim or to challenge the record evidence tending to refute his claims.
Thus, we conclude that the IJ’s finding that Jiang’s claim was not entirely
credible was supported by substantial record evidence. However, because the IJ
did not rest his decision solely on an adverse credibility finding, but rather on the
failure of Jiang to offer corroborative evidence, we next turn to the IJ’s
determination that Jiang did not qualify for asylum, withholding of removal, or
relief under the CAT.
Jiang next argues that the IJ’s denial of Jiang’s application for withholding
of removal was not supported by substantial evidence, and that the IJ based his
decision on conjecture, assumption, and speculation, failed to consider Jiang’s
testimony, and the decision constituted error as a matter of law by relying
exclusively on country reports.
To the extent that the IJ’s decision was based on a legal determination,
review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.
2001). The IJ’s factual determinations are reviewed under the substantial evidence
test, and we “must affirm the [IJ’s] decision if it is ‘supported by reasonable,
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substantial, and probative evidence on the record considered as a whole.’” Al
Najjar, 257 F.3d at 1283-84 (citation omitted). Thus, factual determinations “may
be reversed by this court only when the record compels a reversal; the mere fact
that the record may support a contrary conclusion is not enough to justify a
reversal of the administrative findings.” Adefemi v. Ashcroft, 386 F.3d 1022,
1026 (11th Cir. 2004).
An alien who arrives in or is present in the United States may apply for
asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has
discretion to grant asylum if the alien meets the INA’s definition of a “refugee.”
See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is:
[A]ny 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). The asylum applicant carries the burden of proving
statutory “refugee” status. See Al Najjar, 257 F.3d at 1284. To establish asylum
eligibility, the alien must, with specific and credible evidence, establish (1) past
persecution on account of a statutorily listed factor, or (2) a “well-founded fear”
that the statutorily listed factor, in this case group membership, will cause such
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future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. The
INA does not expressly define “persecution” for purposes of qualifying as a
“refugee.” See INA § 101(a)(42). In Gonzalez v. Reno, 212 F.3d 1338, 1355
(11th Cir. 2000), however, this Court discussed other circuits’ holdings that
“persecution” is an “extreme concept,” requiring more than “a few isolated
incidents of verbal harassment or intimidation,” or “[m]ere harassment.” Id.A showing of past persecution creates a presumption of a “well-founded
fear,” subject to rebuttal by the INS. 8 C.F.R § 208.13(b)(1). A “well-founded
fear” of persecution may also be established by showing a reasonable possibility of
personal persecution that cannot be avoided by relocating within the subject
country. 8 C.F.R. § 208.13(b)(2)(i) & (ii). It is “well-established” that the well-
founded fear inquiry contains both an objective and subjective component, i.e., the
petitioner must be genuinely afraid and that fear must be objectively reasonable.
Al Najjar, 257 F.3d at 1289. Furthermore, it is the petitioner’s burden to present
“specific, detailed facts showing a good reason to fear that he or she will be singled
out for persecution.” Id. at 1287 (quotation and citation omitted).
The United States has also agreed, pursuant to Article 3 of the CAT, not to
“expel, return (refouler) or expedite a person to another state where there are
substantial grounds for believing that he would be in danger of being subjected to
torture.” The Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”),
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Pub. L. No. 105-277, § 2242(a), 112 Stat. 2681 (1998) (codified at 8
U.S.C. § 1231). Section 2242 of FARRA incorporated CAT into domestic law.
To obtain withholding of removal under the CAT, the burden is on the applicant to
show that it is “more likely than not” that he will be tortured in the country of
removal. 8 C.F.R. § 208.16(c)(2). For purposes of CAT relief, the term
“torture”refers to the intentional infliction of severe pain or suffering, mental or
physical, “by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity” in order to intimidate or for
other proscribed purposes. 8 C.F.R. § 208.18(a)(1). Evidence relevant to the
assessment of eligibility for CAT relief includes, but is not limited to: (1) evidence
of past torture; (2) the viability of relocation as a means to avoid torture; (3) gross,
flagrant or mass human rights violations in the country of removal; and (4) other
relevant country conditions. See 8 C.F.R. § 208.16(c)(3).
Concerning Jiang’s asylum claim, as a preliminary matter the BIA affirmed
the IJ’s decision that Jiang had failed to file a timely application for asylum, a
decision we do not have jurisdiction to review. See Mendoza v. U.S. Attorney
General, 327 F.3d 1283, 1287 (11th Cir. 2003). However we still may consider the
IJ’s determination that Jiang failed to meet the standard for withholding of
removal, which requires an alien to show that his life or freedom would “more
likely than not” be threatened upon return to his country because of, among other
15
things, his political opinion. Mendoza, 327 F.3d at 1287; INA § 241(b)(3)(A), 8
U.S.C. § 1231(b)(3)(A). This standard is more stringent than the “well-founded
fear” standard for asylum, and if Jiang is unable to meet the well-founded fear
standard for asylum, he is unable to qualify for withholding of removal. See, e.g.,
All Najjar, 257 F.3d at 1292-93.
Here, the IJ proceeded to analyze Jiang’s claims under the less stringent
standard for asylum, and found that Jiang did not qualify. We conclude that the
administrative record in this case does not compel a reversal because substantial
evidence supported the IJ’s finding that Jiang did not suffer past persecution or
have a well-founded fear of persecution based on his political opinion. As noted
above, the IJ had grounds to “question” Jiang’s testimony, and Jiang’s testimony
was that his sister was forced to have an abortion in 1997 after violating China’s
“one-child” policy. To help his sister resist, Jiang wrestled and fought the seven to
eight government officials, and generally interfered unsuccessfully with their
attempt to remove Jiang’s sister for the purposes of performing a forced abortion.
Despite Jiang’s actions, however, which Jiang stated were “not right with the
government,” Jiang was not arrested or harmed, nor did the government do
anything more than “come looking” for him at his parents’ home. For more than
one year after his actions, Jiang was apparently not harmed in any way, and
eventually came to the United States in August 1999, where he lived for four years
16
before ever filing for asylum, after leaving China illegally.
The Country Reports3 for China indicate that the Chinese government
opposes coercive methods of implementing the “family planning” policies, and that
Fujian, the province where Jiang’s parents lived at the time Jiang’s sister was
allegedly forced to have an abortion and Jiang attempted to intervene, has been
“lax” in enforcing the policies. Furthermore, Chinese citizens now have the right
to sue government officials for exceeding their authority in implementing the
policies. The record also indicated that the Chinese government accepts repatriated
asylees who have left China illegally, punishing first time offenders with a fine.
Based on the foregoing, the IJ found that Jiang’s uncorroborated testimony
was insufficient to meet the less stringent standard for asylum, and, therefore, did
not qualify him under the more stringent requirements for withholding of removal.
The IJ pointed out that Jiang’s fear of persecution was undercut by the fact that
none of the seven or eight government officials saw fit to detain Jiang after he
interfered with them. Moreover, supporting the IJ’s skepticism is the fact that
Jiang did not immediately flee China, but left more than one year after the 1997
incident.
Finally, while Jiang believes that he will be tortured if returned because he
3
This includes the State Dept. reports as well as the United Kingdom report and the
Canadian report.
17
violated China’s emigration policy, his only evidence in support of that contention
is basically that China is not a democracy, and thus, they beat prisoners there. His
application for asylum also includes a claim that repatriated citizens are tortured by
the Chinese government for intelligence purposes in order to learn more about the
United States’ asylum process. This allegation contains no support in the record,
and is undercut by the Country Reports indicating that a first-time violator, such as
Jiang, would be accepted back with only a fine. As the IJ suggested, imposition of
a fine in that context might, in fact, amount more to prosecution for violating
Chinese law than persecution on the basis of political opinion. See, e.g., Abedini
v. U.S.I.N.S., 971 F.2d 188, 191 (9th Cir. 1992) (persuasively holding that a
possibility of prosecution for an act deemed criminal in Iranian society does not
amount to persecution for an enumerated ground.).
Thus, we conclude that the combination of Jiang’s weak, uncorroborated
testimony, combined with the record evidence and the IJ’s credibility
determination, which was supported by record evidence, does not compel a
reversal because a reasonable fact-finder could have found that Jiang failed to
establish that he would more likely than not face persecution on the basis of his
political opinion if returned to China. As noted above, well-founded fear requires
both an objective and a subjective component, and Jiang offered no evidence other
than his own subjective testimony to support his claims, testimony that the IJ
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properly decided was weak as discussed supra. See Al Najjar, 257 F.3d at 1289.
Moreover, where, as here, the applicant’s testimony is weak, there is a greater need
for corroborative evidence. See In re Y-B-, 21 I&N Dec., 1136, 1139 (BIA 1998).
Accordingly, substantial evidence supported the IJ’s determination that Jiang
had not met his burden of proof for either asylum or withholding of removal, nor
had Jiang proven that it was more likely than not that he would be subject to
torture if returned to China.
Finally, Jiang argues that the IJ violated his due process rights by completely
ignoring Jiang’s submitted evidence, which prejudiced Jiang because had the
evidence been considered, the IJ should have found it more likely than not that
Jiang would be tortured or persecuted.
However, Jiang never argued to the BIA that the IJ violated his due process
rights by ignoring submitted evidence. As a result, Jiang failed to exhaust his
administrative remedies, and we lack jurisdiction to consider the argument here.
Fernandez-Bernal v. Attorney General of the U.S., 257 F.3d 1304, 1317 n.13 (11th
Cir. 2001). Accordingly, the issue will not be considered.
Based on the foregoing, we conclude that Jiang’s petition should be denied
because substantial evidence supported the IJ’s decision. Jiang’s petition for
review of his due process and asylum claims are dismissed for lack of jurisdiction.
PETITION DENIED IN PART, DISMISSED IN PART.
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