Jin Fu Weng vs 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[DO NOT PUBLISH]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. 10-14459 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 14, 2011
________________________ JOHN LEY
CLERK
Agency No. A098-981-824
JIN FU WENG,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 14, 2011)
Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:
Jin Fu Weng, a native and citizen of the People’s Republic of China,
petitions this Court for review of the Board of Immigration Appeals’ (“BIA”)
decision 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”), 8 U.S.C. §§ 1158(a), 1231(b)(3), 8 C.F.R. § 208.16(c),
and denying his motion for a remand based on new evidence, 8 C.F.R. § 1003.2(c).
Weng contends that the BIA failed to adequately consider whether he had a well-
founded fear of future persecution based on his opposition to China’s coercive
family planning policy. In addition, Weng argues that the BIA abused its
discretion by denying his motion for a remand based on new evidence of his
involvement in Falun Gong. For the reasons stated below, we deny the petition for
review.
I.
The Department of Homeland Security issued Weng a Notice to Appear,
alleging that he was a native and citizen of China who entered the United States
without being admitted or paroled by an immigration officer. The notice charged
that Weng was removable under INA § 212(a)(6)(A)(i), 8 U.S.C.
§ 1182(a)(6)(A)(i), as an alien present in the United States without being admitted
or paroled. Weng admitted the allegations in the Notice to Appear and conceded
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removability. He applied for asylum, withholding of removal, and CAT relief.
At an asylum hearing, Weng testified that he was born in Changle City,
Fujian Province, China. He was married, and he and his wife had two daughters.
On September 16, 1999, birth control officers came to the family’s house and told
Weng that his wife would have to be sterilized because the couple was not allowed
to have any more children. Weng argued with the officers and tried to stop them
from taking his wife, but the officers took his wife away and forced her to undergo
a sterilization procedure.
Weng testified that he was angry and unhappy over what had happened to
his wife. He told his neighbor that the birth control officers did not respect human
rights and were not human beings. He also declared that he wanted to leave China
and go to the United States. When the birth control officers heard about Weng’s
criticisms, they came to his house and told him that they would sterilize him if he
continued to speak out against them. After two unsuccessful attempts to leave
China, Weng finally was able to come to the United States in 2005. He feared that
he would be fined, imprisoned, and sterilized if he returned to China.
The record included a copy of the U.S. State Department’s 2008 Country
Report on Human Rights Practices in China. According to the 2008 Country
Report, the Chinese government sometimes used coercive measures to enforce its
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population control policy. Parents with two children often were pressured to
undergo sterilization. The report also explained that the Chinese government had
continued a crackdown against the Falun Gong movement. According to Falun
Gong sources, more than 100,000 members had been sentenced to reeducation
through labor camps, and thousands died from torture while in custody. Most
practitioners were punished administratively, but “core leaders” of the Falun Gong
were singled out for particularly harsh treatment. Even practitioners who did not
engage in public demonstrations were sometimes sent to labor camps or forced to
attend anti-Falun Gong classes.
The IJ issued an oral decision denying Weng’s applications for asylum,
withholding of removal, and CAT relief. First, the IJ concluded that Weng’s story
lacked credibility. Moreover, even assuming that Weng’s testimony was credible,
the IJ concluded that he had not met the standard for asylum. The IJ explained
that the family planning officials’ threats to sterilize Weng did not rise to the level
of past persecution. In addition, the IJ determined that Weng did not have a
well-founded fear of future persecution. The IJ observed that, after Weng was
threatened with sterilization, he continued to live in China for five years without
incident, and there was no evidence that the officials had been searching for him
since his departure from China. Accordingly, the IJ denied Weng’s application for
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asylum. Because Weng had failed to meet the standard for asylum, the IJ
concluded that he necessarily was unable to meet the higher standard for
withholding of removal. Finally, the IJ denied Weng’s claim for CAT relief
because he had not shown that he would be tortured by, or with the acquiescence
of, a Chinese government official.
Weng appealed the IJ’s decision to the BIA. He also filed a motion to
remand his case for further proceedings due to the fact that he recently had begun
to practice Falun Gong. In a supporting affidavit, Weng explained that he had
been suffering from depression following the denial of his asylum application and
the death of his mother. On the advice of his wife, he started practicing Falun
Gong, and he discovered that the exercises had a good effect on his mental health.
In March 2010, Weng went to the “Global Service Center for Quitting Chinese
Communist Party,” where he denounced the Communist Party, disassociated
himself from the Communist Youth Group, and formally joined the Falun Gong
movement. Weng feared that he would be imprisoned if he returned to China
because the Chinese government considered Falun Gong to be an “evil cult.”
Weng presented a series of documents in support of his motion for a
remand. First, he submitted a psychiatric evaluation, which indicated that he had
been diagnosed with major depressive disorder and psychosis. Weng also
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provided a letter from his wife in which she advised him to begin practicing Falun
Gong. In addition, he presented a certificate from the Global Service Center for
Quitting Chinese Communist Party, which stated that Weng “has realized the evil
nature of the Chinese Communist Party and registered for quitting the Chinese
Communist Party and/or its affiliated organizations.” Finally, Weng submitted a
series of photographs apparently showing him at the Global Service Center.
The BIA dismissed Weng’s appeal. The BIA did not adopt the IJ’s adverse
credibility finding, but did agree with the IJ’s alternative conclusion that Weng
had not met his burden of proof for asylum, withholding of removal, or CAT
relief. First, the BIA concluded that Weng had not experienced past persecution in
China. The BIA found that Weng’s criticisms of the family planning officials did
not amount to “other resistance” to China’s family planning policy, and concluded
that the family planning officials’ threats to sterilize Weng did not rise to the level
of persecution.
Next, the BIA determined that Weng did not have a well-founded fear of
future persecution. The BIA noted that Weng apparently had “worked
uneventfully as a fisherman until he left China.” The BIA concluded that Weng
had not established an objectively reasonable possibility that he would be
sterilized or otherwise harmed based on his earlier resistance to the family
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planning program. Therefore, the BIA affirmed the denial of Weng’s asylum
application. Because Weng did not satisfy the standard for asylum, the BIA
further concluded, he was unable to meet the higher standard for withholding of
removal. In addition, the BIA determined that Weng was not entitled to CAT
relief because he had not shown that it was more likely than not that he would be
tortured by, or with the acquiescence of, a government official.
The BIA also denied Weng’s motion for a remand. The BIA noted that
mere involvement in the Falun Gong movement does not, in and of itself, entitle a
person to asylum in the United States. Citing the 2008 Country Report, the BIA
noted that the Chinese government reserved the harshest punishments for Falun
Gong leaders, and pointed out that there was no evidence that Weng held a
leadership role in the Falun Gong movement. The BIA further observed that there
was no evidence that the Chinese government was even aware of Weng’s “limited
and very recent” practice of Falun Gong in the United States. Because Weng had
not made a prima facie showing that he would be entitled to asylum based on his
practice of Falun Gong, the BIA concluded that no remand was warranted.
II.
When the BIA issues a decision, we review only that decision, except to the
extent that it adopts the IJ’s opinion or reasoning. Al Najjar v. Ashcroft, 257 F.3d
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1262, 1284 (11th Cir. 2001). Here, the BIA issued its own decision without
adopting the IJ’s opinion or reasoning, so we review only the BIA’s decision. We
review the BIA’s factual findings to determine whether they are supported by
substantial evidence. Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir.
2004) (en banc). “[W]e view the record evidence in the light most favorable to the
agency’s decision and draw all reasonable inferences in favor of that decision.”
Id. at 1027. We may reverse the BIA’s factual findings only when the record
compels a reversal. Id.The Attorney General has discretion to grant asylum to any alien who is
determined to be a refugee. INA § 208(b)(1), 8 U.S.C. § 1158(b)(1); 8 C.F.R.
§ 208.13(a). An applicant qualifies as a refugee if he has suffered past
persecution, or has a well-founded fear of future persecution, in his country of
origin. 8 C.F.R. § 208.13(b); Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1351
(11th Cir. 2009). The burden of proof is on the applicant to establish that he is a
refugee. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i); Kazemzadeh, 577
F.3d at 1351.
To establish asylum based on past persecution, the applicant must show that
he was persecuted on account of a protected ground. 8 C.F.R. § 208.13(b)(1);
Kazemzadeh, 577 F.3d at 1351. We have explained that “persecution is an
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extreme concept, requiring more than a few isolated incidents of verbal
harassment or intimidation, and that mere harassment does not amount to
persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005)
(quotations and alteration omitted) (concluding that menacing phone calls and
threats did not rise to the level of persecution). In the absence of past persecution,
an applicant may establish a well-founded fear of persecution by showing that
there is a reasonable possibility that he will be persecuted if he is returned to his
country of origin. 8 C.F.R. 208.13(b)(2); Kazemzadeh, 577 F.3d at 1352. The
applicant must show that his fear of persecution is both “subjectively genuine and
objectively reasonable.” Al Najjar, 257 F.3d at 1289.
Congress has provided that
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.
INA § 101(a)(42), 8 U.S.C. § 1101(a)(42). An individual whose spouse has been
forced to undergo an abortion or sterilization procedure is not automatically
entitled to refugee status. Yu v. U.S. Att’y Gen., 568 F.3d 1328, 1332-33 (11th Cir.
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2009); Matter of J-S-, 24 I. & N. Dec. 520, 523-24 (A.G. 2008). Rather, the
applicant must show that he or she personally was forced to undergo an abortion
or sterilization procedure, has a well-founded fear of being forced to do so in the
future, or has a well-founded fear of persecution based on “other resistance” to a
population control program. Yu, 568 F.3d at 1333.
To qualify for withholding of removal, an applicant must establish that his life
or freedom would be threatened in his country of origin on account of a protected
ground. See INA § 241(b)(3)(A); 8 U.S.C. § 1231(b)(3)(A). The applicant must
demonstrate that he would more likely than not be persecuted upon being returned to
his country of origin. Sepulveda, 401 F.3d at 1232. An applicant who is unable to
satisfy the standard for asylum generally will be unable to meet the more stringent
standard for withholding of removal. Id. at 1232-33. To establish eligibility for CAT
relief, the applicant must demonstrate that it is more likely than not that he would be
tortured if he is removed to the designated country of removal. 8 C.F.R.
§ 208.16(c)(2). An applicant who is not eligible for asylum generally will be unable
to meet the higher standard for CAT relief. Al Najjar, 257 F.3d at 1303.
In this case, substantial evidence supports the BIA’s finding that Weng did
not have a well-founded fear of future persecution based on his opposition to
China’s family planning policy. As the BIA observed, Weng did not present any
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evidence that he had any problems with the birth control officers between 1999
and his departure from China in 2005. Thus, he failed to establish an objectively
reasonable possibility that birth control officers would target him for persecution
if he returned to China. See Kazemzadeh, 577 F.3d at 1352. Although Weng
suggests that the IJ and the government should have asked him additional
questions to see if he had any further troubles with the family planning officials
before he left China, the burden of proof was on him, not on the agency, to
produce evidence supporting his claim for asylum. See INA § 208(b)(1)(B)(i), 8
U.S.C. § 1158(b)(1)(B)(i); Kazemzadeh, 577 F.3d at 1351.
Because Weng could not meet the standard for asylum, he necessarily was
unable to meet the higher standard for withholding of removal. See Sepulveda,
401 F.3d at 1232-33. In addition, substantial evidence supports the BIA’s denial
of Weng’s claim for CAT relief. Although forced sterilization could be considered
a form of torture, the record does not compel the conclusion that Weng is likely to
be forcibly sterilized if he returns to China. As noted above, after the birth control
officials threatened to sterilize Weng, he was able to remain in China for five years
without further incident. Because Weng did not establish that he would more
likely than not be tortured upon his return to China, the BIA properly denied his
claim for CAT relief. See 8 C.F.R. § 208.16(c)(2).
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III.
A motion to remand a case based on new evidence is generally treated as a
motion to reopen under 8 C.F.R. § 1003.2(c). Al Najjar, 257 F.3d at 1301; Matter
of Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992). We review the BIA’s denial of a
motion to reopen for an abuse of discretion. Zhang v. U.S. Att’y Gen., 572 F.3d
1316, 1319 (11th Cir. 2009). “This review is limited to determining whether the
BIA exercised its discretion in an arbitrary or capricious manner.” Id. The BIA
may deny a motion to reopen if the applicant’s new evidence fails to establish a
prima facie case for asylum. Al Najjar, 257 F.3d at 1302. The applicant bears the
“heavy burden” of showing that his new evidence would likely change the
outcome of the case. Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006);
Matter of Coelho, 20 I. & N. Dec. at 473.
Here, Weng’s new evidence regarding his involvement in Falun Gong did
not establish that he was prima facie eligible for asylum, withholding of removal,
or CAT relief. First, Weng did not show that the Chinese government is even
aware that he has started practicing Falun Gong. Weng may have criticized
China’s family planning policies in the past, but there is no evidence that the
Chinese government has identified him as a dissident or has continued to monitor
his activities. Weng argues that he has engaged in demonstrations against the
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Chinese government, but the only record evidence that he cites is the certificate
and photographs from the Global Service Center for Quitting Chinese Communist
Party. It is not apparent that this certificate or any demonstrations that Weng may
have engaged in have come to the attention of the Chinese authorities.
Even if the Chinese government were to learn of Weng’s involvement in
Falun Gong, it is far from clear that Weng would be singled out for persecution.
Cf. Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1292 (11th Cir. 2006) (“Involvement
with Falun Gong in China by itself does not entitle a person to asylum in the
United States.”). The 2008 Country Report indicates that the harshest
punishments are imposed on Falun Gong leaders, not ordinary practitioners such
as Weng. Although some Falun Gong adherents were sentenced to reeducation
through labor camps, others were only required to take anti-Falun Gong classes.
Thus, it is not apparent that any mistreatment that Weng might experience would
be serious enough to constitute persecution. Because Weng’s new evidence did
not establish that he was prima facie eligible for asylum, the BIA did not abuse its
discretion by denying his motion for a remand. See Al Najjar, 257 F.3d at 1302;
Zhang v. U.S. Att’y Gen., 572 F.3d at 1319.
Accordingly, after review of the administrative record and the parties’
briefs, we deny the petition for review.
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PETITION DENIED.
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