Yan Fang 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[DO NOT PUBLISH]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. 09-15923 ELEVENTH CIRCUIT
JULY 8, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A099-934-503
YAN FANG CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 8, 2010)
Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Petitioner Yan Fang Chen (“Chen”) is a native and citizen of China and
mother of two children. She petitions this Court for review of a final order issued
by the Board of Immigration Appeals (“BIA”) denying her application for asylum
and withholding of removal under the Immigration and Nationality Act (“INA”),
and denying relief under the United Nations Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). Chen argues
that she has a well-founded fear of being forcibly sterilized, fined, or both, under
China’s “one child” policy because she has two children born in the United States.
After thorough review, we conclude that the BIA’s decision is supported by
substantial record evidence. Therefore, we deny the petition.
I.
Chen illegally entered the United States from China in 1999. Once here, she
married Mi Tu Lin, who is also a Chinese citizen residing in the Untied States
illegally, and they had a child together. After becoming pregnant with their second
child, she filed an application for asylum under the INA and for withholding of
removal under the INA and CAT in March, 2007. In May, 2007, the Department
of Homeland Security served Chen with a Notice to Appear charging her with
being subject to removal under the INA. Chen conceded that she was removable
and indicated that she would seek political asylum.
In November 2008, Chen appeared before an Immigration Judge (“IJ”) and
presented evidence on the merits of her asylum claim. Chen testified that if she
2
were returned to China, she would reside in Changle City, Fujian Province where
her husband’s family resides. She stated that she would be subject to sterilization
under the applicable family planning laws if she were returned, because the current
family planning policy in that area requires sterilization after the birth of a second
child. Chen testified that her father and father-in-law had both questioned village
officials, who confirmed that she would subject to the family planning laws and
provided notices stating that either she or her husband would be sterilized if she
returned.
Chen also testified that she knows people in her village who have been
sterilized under the family planning laws, including her mother, brother-in-law,
uncle, cousin’s wife, and schoolmate’s wife. She also testified that although their
projected income will be between 8,000 and 9,000 yuan, they will be required to
pay a fine ranging from 30,000 to 50,000 yuan for violating the family planning
laws. And finally, Chen testified that although her children are United States
citizens, they would be treated as Chinese citizens, and must be registered as
Chinese residents in the “Household Registration Book.” She stated that if she
does not register them, they will be unable to qualify for state benefits such as
public education and healthcare, and that she could face criminal charges.
In addition, Chen submitted a substantial amount of documentary evidence
in support of her asylum claim. This included letters from her husband, father,
3
father-in-law, and a family friend confirming the sterilization policy, as well as
notices from local family planning offices and a 2003 administrative decision
indicating that she would be subject to the policy if returned. She also submitted a
large number of official government reports concerning family planning laws in
China, including, among other documents, a 2007 United States Department of
State (“State Department”) report entitled China: Profile of Asylum Claims and
Country Conditions (“Asylum Profile”); a congressional report; congressional
testimony from demographer John Shields Aird; her family members’ travel and
citizenship documents; and various news reports and other documents regarding
cases of other individuals subjected to sterilization.
After hearing Chen’s testimony and reviewing the documentary evidence
she submitted, the IJ denied her application. Noting that the general documentary
evidence she submitted is essentially identical to evidence the BIA had previously
concluded was insufficient, the IJ found that isolated reports of sterilizations did
not indicate that Chen, whose children were United States citizens, would be
singled out for forced sterilization. Rather, he found family planning enforcement
in Fujian Province was “lax or uneven.” He found that Chen would more likely be
subject to economic fines and penalties, but that Chen had not established that
these would rise to the level of persecution. He also explained that the State
Department’s 2007 Asylum Profile had not found a single case of forced
4
sterilization in Fujian Province, and noted that many violators of the family
planning laws faced only fines. The IJ declined to rely on the notices from local
family planning officials, observing that the State Department has advised that
many documents from Fujian Province are fraudulent. And he discounted the
record evidence of others who claimed to have been sterilized, noting that such
anecdotal incidents did not establish that Chen would be singled out and subjected
to persecution. Thus, the IJ found that Chen had failed to demonstrate an
objectively well-founded fear of persecution and denied her application.
On appeal the BIA affirmed. Regarding the background information, the
BIA, like the IJ, considered State Department documents; the Fujian Province
family planning regulations; publications of Chinese government agencies;
congressional testimony; Aird’s conclusions; and articles from various news
publications. It found this evidence “general in nature and cumulative of
documentation analyzed” and rejected prior BIA cases, citing its previous
published decisions.
The BIA also discounted the individualized evidence Chen submitted. It
found her claims that her mother, brother-in-law, uncle, cousin’s wife, and
schoolmate’s wife were forcibly sterilized were insufficient because, unlike Chen,
they did not have children born abroad who were United States citizens. In
addition, the BIA noted that the record omits relevant facts regarding the
5
circumstances of these procedures, and thus, it was not clear from the record that
these sterilizations amounted to persecution. Similarly, the BIA discounted
affidavits submitted by a man returning to China with two children born in Japan
and a woman returning with a second child born in Romania who were allegedly
sterilized. In this regard, the BIA found that Chen had not established that they
were similarly situated because their children were not United States citizens and
the impact of those countries’ nationality laws was unclear. Finally, it significantly
discounted the statements from Chen’s father and father-in-law, along with the
purported notices from Fujian Province officials stating that Chen would be
subjected to sterilization. It noted that the documents were not originals, were
unauthenticated, and were unsupported by independent evidence. It also found the
notices to be “suspect” because the implication that Chen must accept forced
sterilization was contradicted by the country conditions evidence in the record,
such as the 2007 Asylum Profile.
Finally, the BIA considered the evidence that Chen would be subjected to
harsh fines under Fujian Province family planning laws and rejected Chen’s
contention that imposition of these fines would amount to persecution. In this
regard, the BIA found no clear error in the IJ’s finding that the amount of any fine
Chen might face was speculative.
Based on this, the BIA determined that Chen had not demonstrated either
6
that she violated the family planning policy of Fujian Province or that such a
violation would be punished in a way that would give rise to a well-founded fear of
future persecution. Regarding the possibility of sterilization, the BIA determined
that the evidence did not demonstrate that forcible sterilizations are mandated in
Fujian Province after the birth of a second child who is a United States citizen. It
found that forced sterilization, to the extent it occurs, is uncommon and
unauthorized by Chinese law, which relies primarily on incentives and economic
penalties to achieve compliance with family planning laws. It further found that
sporadic reports of forced sterilizations were insufficient to establish a well-
founded fear that Chen would be singled out for forced sterilization, and that she
had established, at most, a 10% likelihood of persecution upon her return to China.
Finally, the BIA determined that even if Chen were fined for noncompliance with
the Chinese family planning laws, the record does not establish that she would
suffer economic harm amounting to persecution. As a result, the BIA dismissed
Chen’s appeal.
Chen now seeks review of that determination.
II.
When the BIA issues a separate opinion affirming the decision of the IJ, we
review only the BIA’s decision, except to the extent that it expressly adopts the IJ’s
opinion. Huang v. U.S. Att’y Gen., 429 F.3d 1002, 1008 (11th Cir. 2005). To the
7
extent the BIA’s decision is based on a legal determination, we review the decision
de novo. Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1332 (11th Cir. 2010). The
BIA’s “[f]actual determinations are reviewed under the substantial evidence test,
and we ‘must affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.’” Id.
(quoting Al Najjar v. Ashcroft, 257 F.3d 1262, 1283–84 (11th Cir. 2001)). “Under
the substantial evidence test, we review the record evidence in the light most
favorable to the agency’s decision and draw all reasonable inferences in favor of
that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en
banc). “Thus, ‘a finding of fact will be reversed 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.’” Diallo, 596 F.3d at
1332 (quoting Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006)).
A.
Under the INA, an alien who arrives in, or is present in, the United States
may apply for asylum. 8 U.S.C. § 1158(a)(1). The Attorney General of the United
States or the Secretary of the Department of Homeland Security has discretion to
grant asylum if the alien is a “refugee.” Id. at § 1158(b)(1). The INA defines a
“refugee” as:
[A]ny person who is outside any country of such person’s nationality
8
. . . 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 . . . political opinion.
Id. § 1101(a)(42)(A). Relevant to this petition, the INA expressly recognizes
forced sterilization as persecution on account of political opinion:
[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.; Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319–20 (11th Cir. 2009).
“The asylum applicant carries the burden of proving statutory ‘refugee’
status and thereby establishing asylum eligibility.” Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1230 (11th Cir. 2005). To meet this burden, an asylum applicant
must establish with specific credible evidence either (1) past persecution on
account of political opinion or any other statutorily protected ground, or (2) a “well
founded fear” of such persecution in the future. Id. at 1230–31; 8 C.F.R. §
208.13(a)–(b). Where an alien has established past persecution based on a
statutorily protected ground, the alien is entitled to a rebuttable presumption that he
or she will face persecution upon return to his or her country of origin. 8 C.F.R. §
9
208.13(b)(1); Sepulveda, 401 F.3d at 1231. Absent past persecution, however, the
alien is required to demonstrate a fear of future persecution that is both
“subjectively genuine and objectively reasonable.” De Santamaria v. U.S. Att’y
Gen., 525 F.3d 999, 1007 (11th Cir. 2008); Al Najjar, 257 F.3d at 1289. The
subjective component can be satisfied “by the applicant’s credible testimony that
he or she genuinely fears persecution,” De Santamaria, 525 F.3d at 1007, while
“the objective prong can be fulfilled by establishing that the applicant ‘has a good
reason to fear future persecution,’” id. (quoting Ruiz, 440 F.3d at 1257)).
With respect to China’s population control policies, the BIA has adopted a
case-by-case analytical framework in evaluating whether an alien has demonstrated
an objectively reasonable fear of future persecution. Under this inquiry, the BIA
asks whether the alien has (1) provided details of the family planning policy as
applied in the alien’s home province; (2) established that the alien actually violated
the applicable family planning policy; and (3) demonstrated that the violation of
the family planning policy would be punished in a way that would rise to the level
of persecution. See Shao v. Mukasey, 546 F.3d 138, 142–43 (2d Cir. 2008)
(discussing BIA inquiry).1
Applying this framework, the BIA determined that Chen had failed to
1
Chen has not challenged the BIA’s application of this evidentiary framework in her
case.
10
establish an objectively reasonable fear of future persecution. Because Chen never
claimed that she suffered past persecution, the BIA found that she was not entitled
to a rebuttable presumption of future persecution. It further found that Chen had
not established an objectively reasonable fear of future persecution, finding both
the general background information concerning China’s population control laws
and the individualized evidence Chen submitted insufficient.
Chen argues the BIA’s decision should be reversed because the BIA
ignored relevant evidence and failed to adequately explain its decision. We
disagree. First, to the extent Chen claims that the BIA ignored relevant evidence,
she does not identify which evidence she believes the BIA failed to consider in
reaching its decision. Such general claims of error are neither helpful nor
sufficient to establish that the BIA’s factual determinations in this case are not
supported by the record. But in any event, the BIA adequately explained its
decision. The BIA addressed the general background documents Chen submitted,
stating that it had routinely found this same evidence insufficient in other cases.
The BIA is not required to discuss every piece of evidence, so long as it gives
reasoned consideration to the evidence submitted. See Morales v. INS, 208 F.3d
323, 328 (11th Cir. 2000) (“‘Where, as here, the Board has given reasoned
consideration to the petition, and made adequate findings, we will not require that
it address specifically each claim the petitioner made or each piece of evidence the
11
petitioner presented.’” (quoting Martinez v. INS, 970 F.2d 973, 976 (1st Cir.
1992)). The BIA’s reliance on its consistent rejection of this general evidence in
other cases is adequate, particularly given that Chen has not pointed to any basis
for distinguishing her case from the cases the BIA cited. The BIA also addressed
Chen’s individualized evidence, and found it insufficient because it either related
to individuals who were not similarly situated to Chen or was entitled to little
weight. As Chen makes no argument concerning the BIA’s decision to
substantially discount this evidence, we cannot say that the BIA’s determination
was not supported by substantial evidence or that the record compels a contrary
finding.
Second, Chen’s reliance on our decisions in Jiang v. U.S. Attorney General,
568 F.3d 1252 (11th Cir. 2009) and Li v. U.S. Attorney General, 488 F.3d 1371
(2007), is misplaced. Those cases dealt with whether the BIA abused its discretion
in refusing to reopen a previously denied petition for asylum. See Jiang, 568 F.3d
at 1256–57; Li, 488 F.3d at 1374–76. Those decisions therefore only address
whether the aliens provided sufficient evidence of changed circumstances to
warrant reopening a previously denied petition for asylum. They do not address
whether that evidence would be sufficient to establish an objectively reasonable
fear of persecution in the first instance, which is the showing Chen must make in
this case.
12
Moreover, our own review of the evidence Chen submitted persuades us that
the BIA’s decision is supported by substantial evidence. To be sure, Chen has
submitted a significant amount of information indicating that she may be subjected
to sterilization if returned to China2 and we have no doubt that Chen has a
subjective fear that she will suffer that fate. But under our deferential standard of
review, we cannot say that the record compels a conclusion that Chen has
established an objectively reasonable fear of persecution. The background
information Chen submitted certainly indicates that forced sterilizations have
occurred. However, the BIA explained that it has analyzed this same information
in other published decisions and found it inadequate to demonstrate a well-founded
fear that the aliens in each of those cases would be singled out for forcible
sterilization upon returning to China having had more than one child. See In re C-
C-, 23 I&N Dec. 899 (BIA 2006); In re J-W-S-, 24 I&N Dec. 185 (BIA 2007); In
re J-H-S-, 24 I&N Dec. 196 (BIA 2007); In re S-Y-G-, 24 I&N Dec. 247 (BIA
2007). Yet, as explained above, Chen makes no effort here to distinguish her claim
2
We note that although Chen’s counsel has generally pointed to evidence submitted in
the statement of facts, counsel’s brief does not identify evidence or offer meaningful argument
concerning the BIA’s conclusions that (1) the documents submitted by family members did not
establish an objectively reasonable fear of persecution because those individuals were not
similarly situated to Chen; (2) that documents from individuals returning to China were
insufficient because those individuals did not have children who were U.S. citizens and were
returning from countries with different nationality laws; and (3) that the statements from her
family members and the purported notices from village family planning officials were entitled
little weight. Nevertheless, given the evidence submitted and the important interests at stake, we
endeavor to address these issues in any event.
13
from the asylum claims rejected by the BIA in those cases, which supports the
BIA’s decision. Furthermore, many of these background documents relate to
periods before 2002, when China’s family planning regulations were apparently
amended to provide for guidance on long-term and effective birth control measures
as an alternative to the simple rule of “IUD for one birth, sterilization for two
births.” Although the record contains contradictory information about the intent
and implementation of these amendments, there is substantial evidence in the
record to support the BIA’s decision.3
Nor does the other information Chen submitted conclusively demonstrate
that the birth of a second child in the United States would trigger enforcement of
family planning regulations in Fujian Province amounting to persecution. For
example, the 2007 Asylum Profile, on which Chen relies, states that according to
the family planning officials in Fujian Province, there have been no cases of forced
abortion or sterilization there in the last 10 years. Asylum Profile at 26. It is true
that such claims are impossible to verify and asylum applicants claim that forced
sterilization procedures continue. However, the report states that State Department
officials have been unable to find any cases of forced sterilization and local doctors
3
In other cases, the BIA has refused to credit Aird’s testimony over the State
Department’s assessment of family planning laws and practices, finding that his testimony was
not based on personal knowledge of conditions in China. See In re J-W-S-, 24 I&N Dec. at
189–90; In re C-C-, 23 I&N Dec. at 901.
14
in contact with United States consular officials report that they have not seen any
signs of forced sterilizations or abortions in their patients in Fujian Province since
the 1980s.
More significantly, the record contains contradictory information as to
whether Chen’s children, who are United States citizens, would be counted for
birth planning purposes upon her return to China. Chen has submitted evidence,
including statements from relatives; a 2003 administrative decision from Fujian
Province; and purported notices from family planning officials; all of which state
that her children would be counted. However, the record also contains evidence
that they would not be counted, at least so long as they are not registered as
mainland Chinese residents upon their return.4 This includes the 2007 Asylum
Profile and a United States Customs and Immigration Service investigation relating
to the 2003 administrative decision. Given this evidence, we cannot say that the
BIA’s decision was unsupported by the record.
Finally, we cannot say, on the record before us, that the evidence in the
record compels the conclusion that any fine Chen might be subjected to would rise
to the level of persecution. Chen testified that she would be fined between 30,00
4
While the record indicates that the failure to register might preclude her children from
attending state-funded public schools, it also indicates that private schools are available.
Lacking specific evidence as to the nature of the educational opportunities, their availability, and
costs, we cannot evaluate what difference, if any, this would make.
15
and 50,000 yuan, an amount that would be approximately three to five times her
projected annual income. Her testimony was corroborated by her family members’
statements and the notices purportedly issued by family planning officials.
However, the fine schedule Chen provided indicates that the fine might be as low
as 13,510 yuan. While this amount would no doubt constitute a formidable sum
for someone making 8,000 to 9,000 yuan per year, it contradicts her testimony and
the documentary evidence she provided. The BIA considered this evidence, as
well as evidence indicating Chen’s United States citizen children would not be
counted, and the Asylum Profile’s conclusion that fines vary widely across China,
both in amount the severity of the hardship they impose. In light of these findings,
and the BIA’s decision to afford little weight to the statements from family
members and unauthenticated documentary evidence received from family
planning officials, the BIA’s determination is adequately supported by the record.
We are aware that the BIA has determined that “[e]forcement efforts
resulting in moderate economic impact would not, in general, prove a well-founded
fear of future persecution.” See In re J-W-S-, 24 I&N Dec. at 191.5 As stated
5
This is consistent with the view of other circuits that have considered the question. See
Guan Shan Liao v. U. S. Dep’t of Justice, 293 F.3d 61, 70 (2nd Cir. 2002) (“While we recognize
that economic deprivation may constitute persecution, an asylum applicant must offer some
proof that he suffered a ‘deliberate imposition of substantial economic disadvantage.”’ (quoting
Chen v. INS, 195 F.3d 198, 204 (4th Cir. 1999))); Abdel-Masieh v. INS, 73 F.3d 579, 583 (5th
Cir. 1996) (concluding that “deliberate imposition of severe economic disadvantage or the
deprivation liberty, food, housing, employment or other essentials of life” may amount to (
16
above, the fine schedule provided by Chen shows a possible fine as low as 13,510
yuan. Additionally, the State Department’s 2007 Asylum Profile states that
individuals who cannot afford to pay the family planning fines may be allowed to
pay in installments and that their wages cannot be garnished. Thus, we cannot say
that the record compels the conclusion that Chen would be subjected to a fine
rising to the level of persecution.
In sum, we sympathize with Chen and do not doubt her subjective fear of
forced sterilization upon return. But the record before us does not compel the
conclusion that she has an objectively reasonable fear of persecution upon her
return. That being the case, we must deny her petition for review.
B.
To the extent Chen challenges the BIA’s denial of her application for
withholding of removal under the INA and the CAT, that challenge likewise fails.
An alien is entitled to withholding of removal under the INA if she can show her
life or freedom would be threatened on account of race, religion, nationality,
membership in a particular social group, or political opinion. Mendoza v. U.S.
Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). The alien bears the burden of
demonstrating it is “more likely than not” she will be persecuted or tortured upon
being returned to her country. Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218
(11th Cir. 2002). If, however, “an applicant is unable to meet the ‘well-founded
17
fear’ standard for asylum, [s]he is generally precluded from qualifying for either
asylum or withholding of deportation.” Al Najjar, 257 F.3d at 1292–93 (citation
and quotations omitted).
Here, Chen failed to establish that she has a well-founded fear of future
persecution sufficient to establish asylum. For that reason, she cannot establish
that she is entitled to withholding of removal under the INA or the CAT.
PETITION DENIED.
18