Qin Liu 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[DO NOT PUBLISH]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
NOV 1, 2007
No. 07-11386 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A98-113-628
QIN LIU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 1, 2007)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Petitioner Quin Liu (“Liu”), a citizen of China, petitions for review of the
Board of Immigration Appeals’ (“BIA”) decision, affirming the Immigration
Judge’s (“IJ”) denial of asylum, withholding of removal, and relief under the
United Nations Convention Against Torture and Other Cruel, Inhumane or
Degrading Treatment or Punishment (“CAT”), and the BIA’s denial of his motion
to remand, which was based on new evidence of a marriage certificate. Liu and his
wife,Yuan Sun, who had been married in a traditional ceremony, were not legally
married when Sun was subjected to a forcible abortion and sterilization. Sun was
sterilized after Liu escaped sterilization by fighting and fleeing family planning
authorities at the hospital. For the reasons that follow, we deny his petition for
review and affirm the BIA’s denial of his motion to remand.
I.
On appeal, Liu argues that the BIA exceeded its scope of review by
characterizing as “alleged,” contrary to the IJ’s findings: (1) Sun’s coerced
abortion; and (2) the “beating” that Liu received at the hands of the family
planning officials. Liu contends that the BIA’s treatment of these events seriously
undermined his case.
Liu’s contention that the BIA exceeded its scope of review is meritless. The
BIA’s reasons for denying asylum as to the abortion claim were based on Liu’s
failure to be part of a legal marriage and did not depend on whether there had been
2
an abortion, alleged or otherwise. Also, the IJ did not make specific findings
regarding a beating, and Liu never testified that he was beaten.
II.
Liu next argues that the fact that he was not legally married when the
abortion and sterilization of his now legal wife occurred should not bar his asylum
application because the BIA’s determination that a legally recognized marriage
during the relevant time period is required finds no support in precedent or the
regulations. Liu asserts that, because the BIA’s decision in the instant case is
unpublished and, thus, not precedential rule-making, it is not entitled to deference
under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 104 S. Ct. 2778 (1984). Liu argues that his association and later legal
marriage to his wife constituted a significant association, which could establish a
well founded fear of future persecution, and the BIA’s requirement of a legal
marriage was contrary to this doctrine of imputed political opinion.
“[R]eview of the BIA’s interpretation [of a statute] is informed by the
principle of deference articulated in Chevron.” Castillo-Arias v. U.S. Att'y. Gen.,
446 F.3d 1190, 1195 (11th Cir. 2006) (citations omitted), cert. denied 127 S. Ct.
977 (2007). Under Chevron, there is a two-step process, looking to see, first, if
congressional purpose is clear. Id. If Congressional intent on an issue is
ambiguous or silent, “a court may not substitute its own construction of a statutory
3
provision for a reasonable interpretation made by the administrator of an agency.”
Id. (citation and quotation omitted).
In 1996, the definition of “refugee” was amended to include 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). The statute itself is silent on the issue
of a spouse’s derivative asylum. See id. The BIA has determined that the ability
of one spouse to claim refugee status, under § 1101(a)(42), based on the forcible
abortion or sterilization of the other spouse is limited to those legally married. In
re S-L-L-, 24 I. & N. Dec. 1, 7 (BIA 1996) (en banc). We recently affirmed as
reasonable the BIA’s determination that legal marriage is required in order to
extend derivative refugee status to a husband for his wife’s forcible abortion. See
Yi Qiang Yang v. U.S. Att’y Gen., 494 F.3d 1311, 1317-18 (11th Cir. 2007).
Because we conclude that the BIA’s interpretation of the asylum statute,
denying derivative asylum to a partner not legally married at the time when his
partner was subjected to a forcible abortion or sterilization, was reasonable, we
defer to the BIA’s interpretation.
4
III.
Liu next argues that, since his marriage was legally registered in 2005, and
he and Sun had been living as husband and wife since 1999, he was entitled to
asylum protection due to his wife’s past persecution, pursuant to the BIA’s former
decisions, which allow an applicant to establish asylum eligibility due to his/her
spouse’s forced sterilization. Liu recognizes that the BIA has limited this
protection to married couples, but as he and his wife are now legally married, he
claims that he has established the requisite nexus and level of harm for persecution,
making him eligible for asylum. Liu also argues that he demonstrated “other
resistance” to China’s family planning policy by: (1) impregnating his wife; (2)
having two children in secrecy and in violation of Chinese law; (3) escaping
Chinese family planning officials who were planning on sterilizing him; and (4)
going into hiding and refusing to pay fines imposed upon him.
We “review only the [BIA]’s decision, except to the extent that it expressly
adopts the IJ’s opinion.” Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
“Insofar as the [BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as
well.” Id. To the extent that the IJ’s and the BIA’s decisions are based on a legal
determination, review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48
(11th Cir. 2001). Factual determinations, however, are reviewed under the “highly
deferential substantial evidence test,” which requires us to “view the record
5
evidence in the light most favorable to the [IJ]’s decision and draw all reasonable
inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27
(11th Cir. 2004) (en banc).
We have stated that:
[A]sylum relief requires proof of two criteria. To establish asylum
based on past persecution, the applicant must prove (1) that she was
persecuted, and (2) that the persecution was on account of a protected
ground. To establish eligibility for asylum based on a well-founded
fear of future persecution, the applicant must prove (1) a ‘subjectively
genuine and objectively reasonable’ fear of persecution, that is (2) on
account of a protected ground.
Silva v. U.S. Att'y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (citations omitted).
In Yang, we also held that, even assuming that the petitioner established, under the
“other resistance” clause of § 1101(a)(42), that he (1) “had an extremely close and
committed relationship” with his partner, and (2) physically resisted family
planning officials at the hospital in an attempt to prevent his partner’s forced
abortion, he could not establish that he was persecuted, where he only had a
physical altercation with family planning officials at the hospital, was subpoenaed
by the local security office, and was sought by family planning officials and
“Village Cadres,” who tried and were still seeking to arrest him. Yang, 494 F.3d at
1319. We held that, where the petitioner suffered no prolonged detention or
physical violence, we were not compelled to conclude that the petitioner suffered
past persecution. Id.
6
The record does not compel reversal of the BIA’s determination that Liu had
not suffered independent past persecution based on his resistance to family
planning policies, because we conclude that a brief altercation with family
planning officials and going into hiding to avoid arrest are not sufficient to
establish persecution.1
IV.
Liu next argues that he established a well-founded fear of future persecution
based on his resistance to family-planning laws. He contends that his wife’s
sterilization does not negate the possibility of future persecution, and the
presumption of future persecution established by his wife’s sterilization has not
been rebutted. Additionally, he asserts that an outstanding fine creates a fear of
future persecution because, as long as the fine remains unpaid, he and his wife will
live in fear.
Asylum status can be established based on a well-founded fear of future
persecution, by proving that there is “(1) a ‘subjectively genuine and objectively
1
Liu also argues for the first time on appeal that: (1) his wife’s forced abortion and
sterilization resulted in his emotional trauma and psychological persecution; (2) he was
persecuted by the government’s imposition of fines, which he was unable to pay; and (3) the
government effectively deprived him of his livelihood, as he was forced into hiding. However,
we lack jurisdiction to review these claims, as they were not exhausted below.
See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006).
7
reasonable’ fear of persecution, that is (2) on account of a protected ground.”
Silva, 448 F.3d at 1236 (citation omitted). We have held that:
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. As
we have noted, “persecution” is an “extreme concept,” requiring more
than “a few isolated incidents of verbal harassment or intimidation,”
or “mere harassment.” 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.”
Huang v. U.S. Att’y Gen., 429 F.3d 1002, 1009 (11th Cir. 2005) (citations and
alterations omitted).
Because Liu was not able to demonstrate that the Chinese government still
would be interested in arresting him three years after he left China, we conclude
that he has not established a well-founded fear of future persecution.
V.
Finally, Liu argues that, because the BIA has never required that marriages
have to exist during all relevant time periods of the resistance to family planning, it
should have granted his motion to remand to prove the current validity of his
marriage.
Because the motion to remand requested additional proceedings to present
new evidence regarding Liu’s eligibility for relief, it was in the nature of a motion
to reopen. See Najjar, 257 F.3d at 1301. We review the BIA’s denial of a motion
8
to reopen for an abuse of discretion, and “the BIA’s discretion is quite broad.”
Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003) (quotation
omitted).
The marriage certificate did not add any new material information, as it only
proved that he was currently legally married, not that he was married at the
relevant time. Thus, we conclude that the BIA did not abuse its discretion in
denying the motion.
For the above-stated reasons, we conclude that the BIA properly dismissed
the appeal and denied the motion.
PETITION DENIED.
9