Kai Li 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[DO NOT PUBLISH]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
ELEVENTH CIRCUIT
No. 07-11659 JAN 23, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
Agency No. A73-050-847
KAI LI,
a.k.a. Zhongade Li,
a.k.a. Zhong De A. Li,
a.k.a. Zhong De Li,
a.k.a. Zhongande Li,
a.k.a. Zhongand Li,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 23, 2008)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM:
Kai Li, a citizen of China, petitions for review of a final order of the Board
of Immigration Appeals (“BIA”) affirming the immigration judge’s (“IJ”) denial of
his application for asylum, withholding of removal and relief under the United
Nations Convention Against Torture (“CAT”) and denying Li’s motion to reopen.
After review, we dismiss in part and deny in part Li’s petition.1
I. BACKGROUND
In September 1994, Li filed an application for asylum based on his
participation in pro-democracy, student demonstrations in China. In 1995, the IJ
denied Li’s request for asylum, but granted his request for voluntary departure. Li
did not appeal this decision to the BIA. In 1997, Li failed to appear for deportation
as directed.
On August 29, 2003, Li filed a motion to reopen his asylum proceedings
based on his marriage to a United States citizen, with whom he has fathered two
children, also United States citizens. Li contended that if he was returned to China
1
Because Li failed to raise his CAT claim before the BIA, we lack jurisdiction to review
this claim. See INA § 242(d)(1), 8 U.S.C. § 1252(d)(1) (requiring an alien to exhaust
administrative remedies before seeking judicial review); Fernandez-Bernal v. Att’y Gen., 257
F.3d 1304, 1317 n.13 (11th Cir. 2001) (explaining we lack jurisdiction to review claims an alien
fails to raise before the BIA). For the same reason, we lack jurisdiction to review Li’s arguments
on appeal that he received ineffective assistance of counsel during his immigration proceedings
and that he will be persecuted for leaving China illegally. Accordingly, we dismiss Li’s petition
for review as to these claims.
2
he would be forcibly sterilized by the Chinese government for violating its one-
child policy.
On May 21, 2004, an IJ granted Li’s motion to reopen, but noted that Li
appeared to have separate asylum proceedings pending under a different name and
alien number, which should be examined more closely during the reopened
hearing.2 At Li’s request, his asylum proceedings were transferred from New York
to Miami, where a new IJ held a reopened asylum hearing.
After hearing testimony from Li, the IJ concluded that Li’s motion to reopen
should not have been conditionally granted and denied the motion to reopen. The
IJ found that Li had been deceptive in maintaining separate asylum proceedings
under different names and alien numbers. Consequently, the IJ concluded that Li
did not “deserve to be allowed asylum in the exercise of discretion” and that, even
if the asylum proceedings were properly reopened, the IJ “would deny [Li] asylum
in the exercise of discretion.” Finally, the IJ found that Li had failed to show a
well-founded fear of persecution if he were returned to China because only Li was
being deported, not his wife and children, and Chinese government would not
know he had violated the one-child policy.
2
Li had filed another asylum application using the name Zhong De Li and a different
alien number (A29 729 081). Li failed to appear at his deportation hearing in these proceedings
and was ordered deported in absentia on June 16, 1995. On August 29, 2003, Li filed a
substantially similar motion to reopen in this other asylum case. On September 16, 2003, an IJ
denied the motion to reopen, and, on June 9, 2004, the BIA affirmed.
3
Li appealed to the BIA, arguing that: (1) the IJ was precluded by the doctrine
of law of the case from revisiting the previous IJ’s decision to reopen his asylum
proceedings; (2) the IJ improperly limited Li’s evidence of persecution during the
hearing; and (3) that Li had established a well-founded fear of persecution.
However, Li did not challenge the IJ’s discretionary denial of asylum. Li also filed
a motion to reopen before the BIA, arguing that couples who return to China with
more than one child face serious consequences.
The BIA entered an order denying all relief. The BIA agreed with the IJ that
Li’s use of multiple names and alien numbers was deceptive and concluded that
“[t]his deception provides ample grounds to deny asylum in discretion.” The BIA
alternatively determined that Li had failed to show an objectively reasonable fear
of future persecution. The BIA also denied Li’s motion to reopen filed in the BIA.
Li filed this petition for review.
II. DISCUSSION
A. Reconsideration of Motion to Reopen
On appeal, Li argues that the BIA abused its discretion when it affirmed the
IJ’s re-adjudication of Li’s motion to reopen. Li’s argument misconstrues the
BIA’s ruling. The BIA did not adopt or affirm the part of the IJ’s decision
reconsidering and denying Li’s motion to reopen. In fact, the BIA treated the
4
proceedings as reopened, considered Li’s asylum request on the merits and
affirmed the denial of his asylum request.
B. Asylum Claim
Li also argues that he is entitled to asylum because he demonstrated a well-
founded fear of persecution based on his violation of the one-child policy.
However, the BIA denied Li asylum on two separate grounds: (1) Li had failed to
prove a well-founded fear of persecution; and (2) Li’s asylum request should be
denied as a matter of discretion because of his deceptive use of different names and
alien numbers in separate asylum proceedings. On appeal, Li challenges only the
first ground and does not argue that the BIA erred in its discretionary denial of
asylum.3 Because a separate basis for the BIA’s asylum decision remains
undisturbed, we have no cause to grant Li’s petition for review as to his asylum
claim.
C. Withholding of Removal Claim
3
The discretionary denial of asylum is “conclusive unless manifestly contrary to the law
and an abuse of discretion.” INA § 242(b)(4)(D), 8 U.S.C. § 1252(b)(4)(D). Li’s brief to this
Court focuses solely on whether his evidence met the “well founded fear” standard and does not
argue that the discretionary denial of asylum was manifestly contrary to law and an abuse of
discretion. In any event, even if Li challenged the discretionary denial of asylum in this Court,
we would lack jurisdiction to review it because Li also failed to raise this challenge before the
BIA. See INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. U.S. Att’y Gen., 463
F.3d 1247, 1250-1251 (11th Cir. 2006).
5
Li also contends that his evidence of the harm he and his family will face if
they return to China established that he is entitled to withholding of removal.4
An alien is entitled to withholding of removal if he can show that his life or
freedom would be threatened on account of his race, religion, nationality,
membership in a particular social group or political opinion. INA § 241(b)(3)(A),
8 U.S.C. § 1231(b)(3)(A); see also Mendoza v. U.S. Att’y Gen., 327 F.3d 1283,
1287 (11th Cir. 2003). To qualify for withholding of removal, an alien must show
that it is more likely than not that he will be persecuted or tortured upon his return
to the country in question. Id. at 1287. The alien can meet this burden by showing
either: (1) “past persecution in his country based on a protected ground,” in which
case a rebuttable presumption is created that his life or freedom would be
threatened if he is returned to his country; or (2) “a future threat to his life or
freedom on a protected ground in his country.” Id.
4
When, as here, the BIA issues its own opinion without expressly adopting the IJ’s
decision, we review only the BIA’s decision. Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d
884, 890 (11th Cir. 2007). To the extent that the BIA’s decision was based on a legal
determination, our review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th
Cir. 2001). The BIA’s factual 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.” Al Najjar v. Ashcroft, 257 F.3d 1262,
1283-1284 (11th Cir. 2001) (quotation marks omitted). The substantial evidence test is
deferential and does not allow “re-weigh[ing] the evidence from scratch.” Mazariegos v. Office
of U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001) (quotation marks omitted). “To
reverse the IJ’s fact findings, we must find that the record not only supports reversal, but
compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003) (considering
withholding-of-removal claim). The fact that evidence in the record may support a conclusion
contrary to the administrative findings is not enough to justify a reversal. Adefemi v. Ashcroft,
386 F.3d 1022, 1027 (11th Cir. 2004) (en banc).
6
Here, Li’s withholding of removal claim rests solely on a fear of future
persecution. For purposes of determinations under the Immigration and
Nationality Act, persons who have a well founded fear that they will be forced to
undergo sterilization or an abortion or that they will be persecuted for refusing to
undergo such procedures are deemed to have a well founded fear of “persecution
on account of political opinion.” INA § 101(a)(42), 8 U.S.C. § 1101(a)(42). To
establish a well founded fear, “an applicant must demonstrate that his or her fear of
persecution is subjectively genuine and objectively reasonable.” Al Najjar v.
Ashcroft, 257 F.3d 1262, 1289 (11th Cir. 2001) (discussing the well founded fear
standard in the context of an asylum claim).
For several reasons, our review of the record persuades us that substantial
evidence supports the BIA’s determination that Li’s fear of persecution was not
objectively reasonable. First, the 2004 United States Department of State Country
Report on China indicates that China’s policy formally prohibits the use of
physical coercion to submit a person to sterilization or abortion, and that only a
few cases were reported that year. Primarily, the policy is enforced through social
and financial pressures. Second, the record contains evidence that Chinese
nationals, like Li, who return to China after having unauthorized children overseas
are treated leniently by Chinese authorities; may receive, at most, modest fines;
and may be excused from penalties altogether. See Yang v. U.S. Att’y Gen., 418
7
F.3d 1198, 1203 (11th Cir. 2005) (concluding that a single fine for failure to
comply with family planning policy does not amount to persecution).5
Third, the BIA cited the 2005 Profile of Asylum Claims and Country
Conditions, which stated that, in Li’s home province of Fujian, families in which
both parents are Chinese citizens would be expected to pay social compensation
fees for unauthorized children attending school and to comply with the family
planning policy in future. However, where one of the parents has “residency rights
in another country,” such as Li’s wife, the family receives special treatment under
family planning laws. Indeed, Li presented no evidence that a returning Chinese
citizen whose spouse and children are United States citizens is subjected to
substantial fines or forced sterilization or contraception.6
D. Motion to Reopen Filed with the BIA
5
Li cites Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006), but Guo is distinguishable both
procedurally and factually. First, Guo reviewed a decision to deny a motion to reopen a claim
for CAT relief, not a decision to deny withholding of removal on the merits. See 463 F.3d at
111. Second, Guo involved Chinese citizens who had born one child in China and a second
child in the United States. It also does not appear that the alien’s spouse in Guo was a United
States citizen. See id. at 111-12. Furthermore, the alien in Guo submitted certain documents
with her motion to reopen that Li has not submitted in this case. Finally, the BIA failed to
consider Guo’s documents, which is not the situation in Li’s case. See id. at 113.
6
Although the 2003 affidavit of John Aird supports Li’s contention that couples with
Chinese citizenship who have given birth to unauthorized children overseas are subject to
coercive family planning measures upon their return, much of the information contained in the
Aird affidavit relates to the 1980s and 1990s. Furthermore, the 2003 Aird affidavit does not
address couples in which one spouse is a United States citizen. Thus, the Aird affidavit does not
compel the conclusion that Li had an objectively reasonable fear of persecution if he is returned
to China.
8
Li argues that the BIA abused its discretion in denying the motion to reopen
filed with the BIA during the pendency of his BIA appeal.7
An alien may file only one motion to reopen and must do so based on new
evidence within ninety days of the entry of the final order of removal. INA §
240(c)(7)(A), (C)(i), 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(1)-
(2). The ninety-day limit is mandatory and jurisdictional and therefore not subject
to equitable tolling. Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1150 (11th Cir.
2005). An exception to the ninety-day limit exists if the alien is reapplying for
asylum and withholding of removal “based on changed circumstances arising in
the country of nationality . . . if such evidence is material and was not available and
would not have been discovered or presented at the previous proceeding.” INA §
240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
Here, Li’s third motion to reopen exceeded the one-motion requirement and
was filed eleven years after an IJ entered a deportation order against him.
Furthermore, Li did not show that some of the evidence he submitted in support of
his motion to reopen was unavailable and could not have been discovered and
7
We review the BIA’s denial of a motion to reopen for abuse of discretion. Gbaya v.
U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003). Specifically, “[o]ur review is limited to
determining whether there has been an exercise of administrative discretion and whether the
matter of exercise has been arbitrary or capricious.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148,
1149 (11th Cir. 2005) (quotation marks omitted).
9
presented at his 2005 hearing.8 Finally, the remainder of Li’s evidence–the 2005
Country Report and an updated affidavit by John Aird dated 2005–does not
demonstrate changed circumstances in China.9 Li’s motion to reopen is based not
upon changed country circumstances, but upon changed personal
circumstances–his marriage to a United States citizen and the intervening birth of
his two children–which are not grounds for granting a motion to reopen based on
changed circumstances. The BIA’s decision to deny Li’s motion to reopen was not
an abuse of discretion.
PETITION DENIED IN PART, DISMISSED IN PART.
8
Li submitted a 1995 Department of Justice report containing information that was
material on the subject of couples returning to China after having given birth to children abroad.
9
The 2005 Aird affidavit notes that Chinese official correspondence indicates that couples
who have permanent residence status abroad–which is relevant at least to Li’s wife–would be
granted exceptions to family planning enforcement upon resettlement in China. Li’s motion also
cited the 2005 Profile of Asylum Claims and Country Conditions, which noted that where one
Chinese parent has residency rights in another country, such as Li’s wife, the couple will receive
special treatment upon returning to China.
10