Rong Guang Liu 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[DO NOT PUBLISH]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
Nos. 10-12832 ; 11-10145 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 23, 2011
________________________ JOHN LEY
CLERK
Agency No. A099-927-058
RONG GUANG LIU,
SHUN WEN CHEN,
lllllllllllllllllllll Petitioners,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
________________________
Before WILSON, KRAVITCH and BLACK Circuit Judges.
PER CURIAM:
In this consolidated petition for review, Rong Guang Liu and her husband
Shun Wen Chen (“the petitioners”), natives and citizens of China, petition this
court for review of the Board of Immigration Appeals’ (BIA) affirmance of the
Immigration Judge’s (IJ) order of removal and denial of asylum1 and the BIA’s
order denying their motion to reopen removal proceedings. Because we conclude
that the BIA’s determination is supported by substantial evidence and the record
does not compel the conclusion that the petitioners were entitled to relief from
removal, we deny the petition for review with respect to the underlying asylum
claim. We also deny the petition for review as to the motion to reopen because
(1) the petitioners have not shown that the evidence they sought to present was
new, material, and unavailable earlier, and (2) Chen could have requested
cancellation of removal during the earlier proceedings and failed to do so.
I. Background
Liu and Chen separately entered the United States without being admitted or
paroled. Liu entered in September 1999; Chen’s date of entry is unknown. They
married in July 2000 and had their first son in 2001. In 2006, while Liu was
pregnant with her second child, Liu and Chen filed identical affirmative
1
The IJ denied asylum, withholding of removal, and relief under the United
Nations Convention against Torture (CAT). In their petition for review, Liu and
Chen do not challenge the denial of withholding of removal or CAT relief. In fact,
they mention withholding of removal briefly by setting out the standard, but they do
not argue they were entitled to withholding of removal. Thus they have abandoned
these issues. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 (11th Cir. 2005).
2
applications for asylum, alleging that they would be subject to forced sterilization
if they returned to China because they would be in violation of China’s family
planning policies with the birth of their second child.2 In 2007, the DHS issued
notices to appear, charging the petitioners as removable under INA
§ 212(a)(6)(A)(i); 8 U.S.C. § 1182(a)(6)(A)(i).
At the removal hearing, Liu testified as follows: She had been born in
Fujian Province and had come to the United States in 1999 to work. She had two
children born in the United States, and she feared that she would be forcibly
sterilized and severely fined if she returned to China because she was now in
violation of China’s one-child policy. She had learned of the policy from her
mother-in-law and through newspaper and radio reports. Both Liu’s mother-in-
law and her uncle had spoken with family planning officials in their respective
towns and confirmed the policy. Liu explained that if she returned to China, she
would have to register the children in the household registry and would face a
large fine that she and her husband could not afford. Liu was aware of a sister-in-
law and friends who had been forcibly sterilized under the policy in 1996, 2000,
and 2003, although these women gave birth to their children in China.
2
Because the applications are identical and the cases were consolidated, we
refer generally to Liu’s application.
3
In support of the application, Liu submitted extensive documents including
the 2007 State Department Country Report, which indicated that there had been no
reports of forced abortion or sterilization in the last ten years and that all surgery
required informed consent. The Report recognized, however, that some coercion
to comply with family planning policies occurred through public pressure. The
Report stated that U.S. officials were unaware of any policy mandating
sterilization after the birth of two children abroad, and it explained that in the
Fujian Province if children born abroad were not registered as permanent residents
of China, they would not be counted under the family planning rules. With respect
to fines, or “social compensation fees,” the Report noted that there were wide
variations in fines and citizens were permitted to pay in installments.
The IJ denied relief, questioning the authenticity of the Chinese documents,
giving greater weight to the 2007 State Department Country Report, and finding
that any fear of future persecution was speculative. The IJ further found that the
economic sanctions did not rise to the level of persecution. The IJ concluded that
the BIA’s decision in Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007)
controlled.
The petitioners appealed to the BIA, which affirmed the IJ’s decision. The
BIA found that the petitioners had failed to show that they would be persecuted on
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account of the birth of their two children. The BIA cited its recent decision in
Matter of H-L-H- and Z-Y-Z-, 25 I. & N. Dec. 209 (BIA 2010), and gave more
weight to the 2007 State Department Country Report. The BIA further concluded
that the petitioners had not shown that any economic sanctions would rise to the
level of persecution. A petition for review followed.
While that petition for review was pending, Liu and Chen filed a timely
motion to reopen removal proceedings on the grounds that they had new evidence
showing prima facie eligibility for asylum. They also sought to reopen the
proceedings in order to file a new asylum application raising religious persecution
claims and to seek cancellation of removal. To support their claim of religious
persecution, the petitioners submitted the following: (1) a letter from Liu’s sister-
in-law, Yue Chen, explaining that she was a practicing Christian and had been
detained and beaten by Chinese authorities because there was no religious freedom
in China; (2) the 2007 State Department International Freedom Report, which
indicated that they had been some abuses of religious freedoms and some members
of unregistered churches have been detained and beaten; and (3) articles about
abuses of religious freedoms. In support of their claim for persecution based on
China’s family planning policy, the petitioners submitted: (1) a 2009 report from
ChinaAid and the 2009 Congressional testimony of Representative Tom Lantos;
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(2) the 2009 Annual Report of the Congressional-Executive Commission on
China, finding that China’s policy violated international human rights, but
recognizing that although coercive measures continued, implementation varied
throughout the country; (3) numerous articles about China’s one-child policy and
the coercive measures the Chinese government used to implement it; (4) a report
by Dr. Flora Sapio criticizing the State Department’s 2007 Country Profile;
(5) documents concerning another Chinese citizen, Renzun Yuan, who had two
U.S.-born children and who was allegedly was sterilized after his removal to
China; and (6) official documents from the various township websites confirming
that sterilization was required for Chinese citizens who had children overseas.
The BIA denied the motion to reopen, finding that the evidence was not
previously unavailable or unable to be discovered. The BIA also found that the
petitioners had not sought cancellation of removal during the earlier proceedings
and had not explained their failure to do so. Addressing the persecution claims,
the BIA found that the petitioners had not shown that the evidence pertaining to
China’s one-child policy was unavailable earlier or that any new evidence would
impact the outcome of their case. With respect to the request to reopen
proceedings so that they could file a new asylum application based on religious
persecution, the BIA found that the petitioners did not submit a new application
6
for relief as required, they had not shown they were prima facie eligible for relief,
and they could not show that unregistered churches in China were subject to
persecution in their locality. Petitioners have now filed a petition for review of the
BIA’s denial of the motion to reopen. We administratively consolidated the two
petitions.
II. Standards of Review
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 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
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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)).
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.”
Adefemi 386 F.3d at 1029.
“We review the [BIA’s] denial of a motion to reopen removal proceedings
for abuse of discretion.” Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir.
2007). Our review “is limited to determining whether the BIA exercised its
discretion in an arbitrary or capricious manner.” Zhang v. U.S. Att’y Gen., 572
F.3d 1316, 1319 (11th Cir. 2009). The BIA has discretion to deny a motion to
reopen for at least three reasons:
(1) failure to establish a prima facie case [of eligibility for asylum or
withholding of removal]; (2) failure to introduce evidence that was
material and previously unavailable; and (3) a determination that
despite the alien’s statutory eligibility for relief, he or she is not
entitled to a favorable exercise of discretion.
Li, 488 F.3d at 1374 (alteration in original) (quotation marks omitted). Motions to
reopen are especially disfavored in removal proceedings, “where, as a general
matter, every delay works to the advantage of the deportable alien who wishes
8
merely to remain in the United States.” I.N.S. v. Doherty, 502 U.S. 314, 323
(1992).
III. Discussion
A. Asylum
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
. . . 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.
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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). Because Liu and Chen did not allege that
they suffered persecution in the past, to meet this burden, they must show a “well
founded fear” of such persecution in the future. Id. at 1230-31; 8 C.F.R.
§ 208.13(a)-(b). They are 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). 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).
The petitioners argue that they have established a well-founded fear of
future persecution based Liu’s credible testimony and the documentary evidence
they submitted. They argue that the weight of the evidence compels the
conclusion that they are entitled to asylum and that the BIA failed to adequately
explain its finding that their fear is not reasonable. In support of their claims, they
cited other cases from this circuit remanding denials of motions to reopen removal
10
proceedings. The petitioners also assert that the BIA failed to consider the letters
from people in China who had been forced to undergo sterilization. They further
argue that the BIA erred when it concluded that the fines did not rise to the level
of persecution.
Here, the record does not compel the conclusion that Liu and Chen
established a well-founded fear that is objectively reasonable, and we conclude
that substantial evidence supports the BIA’s decision for several reasons. First,
the BIA adequately explained its decision when it addressed the general
background documents and stated that it had routinely found this same evidence
insufficient in other cases. Matter of H-L-H- and Z-Y-Z-, 25 I. & N. Dec. 209(BIA 2010). The BIA is not required to discuss every piece of evidence, so long
as it gives reasoned consideration to the evidence submitted. Morales v. INS, 208
F.3d 323, 328 (11th Cir. 2000). The BIA also addressed the petitioners’
individualized evidence and found it insufficient because it either related to
individuals who were not similarly situated to Liu or was entitled to little weight.
Liu and Chen have not pointed to any basis for distinguishing their case from the
cases the BIA cited.
Second, this court’s decisions granting review in petitions involving
motions to reopen is inapplicable to the instant petition. The cases involving
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motions to reopen dealt with whether the BIA abused its discretion in refusing to
reopen a previously denied petition for asylum. Thus, those decisions address
only whether the aliens provided sufficient evidence of changed circumstances to
warrant reopening a previously denied petition for asylum. They do not address
the merits of the underlying asylum claim in the first instance.
Third, the record contains contradictory information about the status of the
U.S.-born children in China. The State Department Country Report indicates that
the U.S.-born children would not count towards the family planning limitations if
they are not registered. Other documents indicate that U.S.-born children must be
registered and thus would be counted. Additionally, although the background
information indicates that forced sterilizations have occurred, 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 Matter of H-L-H- and Z-Y-Z-, 25 I. & N.
Dec, 209 (BIA 2010); 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). In light of this conflicting evidence,
and under the deferential standard of review, the record does not compel a
12
conclusion that the petitioners established an objectively reasonable fear of
persecution.
Additionally, many of the background documents Liu submitted 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.”3 There are also numerous documents that predate Liu’s second
pregnancy and the onset of her fear of persecution. Given the remoteness of these
documents, they do not provide any evidence that the petitioners’ fear is
objectively reasonable.
Finally, the BIA properly concluded that the fines the petitioners could face
did not rise to the level of persecution. In re J-W-S-, 24 I. & N. Dec. at 191
(“[e]forcement efforts resulting in moderate economic impact would not, in
general, prove a well-founded fear of future persecution.”). Although the
petitioners submitted a copy of the fine schedule from Fujian Province, Liu’s
testimony consisted of nothing more than her self-serving statement that the fine
would be severe. Additionally, the 2007 State Department Country Report
3
See Chen v. U.S. Att’y Gen., 389 Fed. Appx. 879, 884 (11th Cir. 2010)
(unpublished).
13
confirms that individuals who cannot afford the fines may be allowed to pay in
installments and that their wages cannot be garnished. Thus, the record does not
compel the conclusion that the petitioners would be subjected to a fine rising to
the level of persecution.
B. Motion to Reopen
On review, we conclude that the BIA did not abuse its discretion by denying
the motion to reopen. First, addressing the family-planning claim, the evidence
the petitioners submitted was not material or unavailable earlier. Much of the
evidence does not relate to Fujian Province, and none of the allegedly official
documents were properly authenticated. Moreover, the BIA was permitted to
reject Dr. Sapio’s critique of the 2007 Profile and to rely on the State Department
reports. See Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1243 (11th Cir.
2004). In any case, the evidence submitted is unlikely to change the outcome of
the underlying removal proceedings because none of the evidence presented
establishes that Fujian Province applies coercive measures consistently or that the
petitioners would be subject to such measures.4
4
The petitioners’ case is distinguishable from Jiang v. U.S. Att’y Gen., 568
F.3d 1252 (11th Cir. 2009), and Li v. U.S. Att’y Gen., 488 F.3d 1371 (11th Cir. 2007).
In those cases, the petitioners submitted evidence establishing that there was
increased enforcement of China’s family planning policy in their hometowns. They
also submitted first-hand accounts of forced sterilization. This court concluded that
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Second, with respect to the religious persecution claim, although the
petitioners submitted a letter from Liu’s sister-in-law stating that she had been
persecuted based on her religious beliefs, none of the other evidence submitted
supported the petitioners’ claims.5 Additionally, the letter from Liu’s sister-in-law
identifies only a single instance that occurred almost a year before the petitioners
raised a claim of religious persecution. None of the other documents shows that
officials in Fujian Province are aware of the petitioners’ religious beliefs or that
the Chinese government would persecute Liu and Chen for their religious
practices. Rather, the evidence submitted shows that treatment of unregistered
churches varies throughout China. Thus, the petitioners failed to show prima facie
the evidence established changed country conditions to warrant granting an untimely
motion to reopen. But the court did not address the merits of the motion. In the
instant case, the court is not asked to consider changed country conditions to excuse
an untimely motion to reopen. Moreover, the evidence submitted in this case was
significantly less specific and thus was unlikely to change the outcome.
5
The government asserted in its response to the motion to reopen that the
religious persecution claim was untimely because the petitioners had been in the
United States for more than one year and thus an asylum application raising this issue
would be untimely. The petitioners now respond that the new claim is simply an
amendment to their previously-filed asylum application and satisfies the requirements
of 8 C.F.R. § 1003.2(c)(1). The purpose of a motion to reopen is not to raise new
claims for relief. To the extent that the petitioners’ raise a new ground for
relief–religious persecution–an asylum application would be untimely. See 8 U.S.C.
§ 1158(a)(2)(b).
15
eligibility for relief based on religious persecution. Accordingly, the BIA did not
abuse its discretion is denying the motion to reopen on this ground.
Finally, the evidence submitted failed to establish that Chen was prima facie
eligible for cancellation of removal.6 The Attorney General may cancel the
removal of a non-permanent resident who
(A) has been physically present in the United States for a continuous
period of not less than 10 years immediately preceding the date of
such application; (B) has been a person of good moral character
during such period; (C) has not been convicted of an offense under
section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to
paragraph (5); and (D) establishes that removal would result in
exceptional and extremely unusual hardship to the alien’s spouse,
parent, or child, who is a citizen of the United States or an alien
lawfully admitted for permanent residence.
8 U.S.C. § 1229b(b)(1). Under the regulations, a motion to reopen will not be
granted
for the purpose of affording the alien an opportunity to apply for any
form of discretionary relief . . . if it appears that the alien’s right to
apply for such relief was fully explained to him or her and an
opportunity to apply therefore was afforded at the former hearing,
unless the relief is sought on the basis of circumstances that have
arisen subsequent to the hearing.
6
We have jurisdiction to consider this claim because the BIA denied
cancellation on procedural grounds and not discretionary grounds. See 8 U.S.C.
§ 1252(a)(2)(B)(i); Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2004).
16
8 C.F.R. § 1003.2(c)(1). Here, the BIA concluded that reopening the proceedings
to enable Chen to seek cancellation of removal was not warranted because Chen
had not established the procedural requirements for relief. The BIA noted that
Chen had not raised the issue of undue hardship during the earlier proceedings and
he had not explained his failure to do so. In his application for cancellation of
removal, Chen indicated that his removal would be an undue hardship on his
children, but he offered no explanation as to how. Accordingly, the BIA did not
abuse its discretion in concluding that Chen had not met the procedural
requirements for cancellation of removal.
PETITION DENIED.
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