Ting Ying Tang v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 13-1419
TING YING TANG,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A089-905-761)
Immigration Judge: Hon. Eugene Pugliese
Submitted under Third Circuit LAR 34.1(a)
On November 5, 2013
Before: GREENAWAY, JR., VANASKIE and ROTH, Circuit Judges
(Opinion filed: July 3, 2014)
OPINION
GREENAWAY, JR., Circuit Judge:
1
Ting Ying Tang (“Tang”) petitions for review of the Board of Immigration
Appeals’ (“BIA”) dismissal of her appeal. For the following reasons, we will deny the
petition for review.
I. Background
Because we write primarily for the parties, we recount only the essential facts.
Tang, a native and citizen of the People’s Republic of China from Fujian Province,
entered the United States in September 2000 without a valid immigration visa or other
entry document. In August 2008, while she was pregnant with her second child, she filed
affirmative applications for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). Tang claimed that, if she were removed to China,
she feared that she would be forcibly sterilized and fined pursuant to a Fujian Province
family planning policy. She also claimed a fear of persecution because of her Christian
religion (to which she converted after being introduced to the religion in December
2010). In September 2008, the Government charged Tang as removable under 8 U.S.C.
§ 1227(a)(1)(A). While her immigration proceedings were ongoing, she gave birth to her
second child and, thereafter, to a third child.
In April 2011, following a hearing, the Immigration Judge (“IJ”) denied relief for
two reasons. First, with respect to the forcible sterilization claim, the IJ stated that the
essential “question is whether there is any known history of individuals returning from
the United States . . . with two or more children who have been persecuted because of it.”
(App. 38.) After “look[ing] in the record in vain for information” that sufficiently
addressed this question, the IJ determined that Tang had failed to meet her burden of
2
proof, “especially in light of” commentary in the 2007 United States Department of State
Profile of Asylum Claims and Country Conditions for China (“2007 Profile”) indicating
that the State Department “does not have any knowledge of any such thing happening.”
(Id. at 39.) Second, with respect to the Christian religion claim, the IJ determined that
Tang had also failed to meet her burden of proof, particularly because the 2007 Profile
reflected that, of the millions of unregistered Catholics and Protestants living in China,
“[t]here is no evidence of a pattern or practice of persecution . . . against church members
[irrespective of] whether [they] are attending registered or unregistered church.” (Id. at
42.) The IJ denied Tang’s applications for asylum, withholding of removal, and relief
under CAT.
In January 2013, the BIA dismissed Tang’s appeal after failing to find any “clear
error in the Immigration Judge’s determination that the respondent has not established a
well-founded fear of persecution in China on account of her religion” or “on account of
China’s family planning policy.” (Id. at 4, 5.) The BIA also rejected Tang’s due process
claims.1 This petition for review followed.2
II. Analysis
“So long as the BIA’s decision is supported by ‘reasonable, substantial, and
probative evidence on the record considered as a whole,’ we will not disturb the BIA’s
1
Tang does not raise in her brief any of the due process arguments she presented to the
BIA, so we need not consider them. See Laborers’ Int’l Union of N. Am. v. Foster
Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994).
2
We have jurisdiction to review the BIA’s final order of removal pursuant to 8 U.S.C. §
1252(a)(1).
3
disposition of the case.” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006)
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). With respect to the scope of
our review, we review the BIA’s order of removal but may also look to the IJ’s decision
to the extent that the BIA affirmed its conclusions. See id. (“Inasmuch as the BIA
deferred to the IJ’s credibility determinations and adopted the reasons the IJ set forth, we
have authority to review both determinations.”).
If petitioner cannot establish past persecution, she must demonstrate a well-
founded fear of future persecution to obtain asylum. See Chavarria, 446 F.3d at 515-16
(citing 8 U.S.C. § 1101(a)(42)(A)). To make this showing, petitioner must “demonstrate
a subjective fear . . . that is supported by objective evidence that persecution is a
reasonable possibility.” Yu v. Att’y Gen., 513 F.3d 346, 348 (3d Cir. 2008).
A. Forced Sterilization
Tang alleges that both the BIA and the IJ should have accorded greater weight to
the evidence she set forth concerning forced sterilizations. After reviewing the record as
a whole, we are convinced that the record evidence does not compel us to reach a
conclusion contrary to that of the IJ and the BIA.
``Among other documents,3 Tang submitted (i) one certificate from the “Xiang
Yang Villager Committee of Ting Jian[g] Town,” which states that Tang “is a villager of
3
To support her claim that persons generally, rather than only Tang specifically, are
subject to forced sterilization upon returning to China after having more than one child
abroad, Tang relied on a number of documents, including affidavits and other evidence
from two individuals. One affidavit indicates that Renzun Yuan (“R. Yuan”) was
forcibly sterilized upon his return to Fujian Province after having children during his time
in the United States, and another affidavit indicates that Zhousheng Yuan accompanied
4
this village. . . . and sterilization must be performed after the second birth,” (see id. at
258-59); and (ii) another certificate from the Ting Jiang Town Family Planning Office
explaining its compulsory sterilization policy. (Id. at 262-63.) Tang also submitted an
affidavit from her mother-in-law, which stated that her mother-in-law obtained the Xiang
Yang Villager Committee and Ting Jiang Town Family Planning Office certificates and
had been told by the Ting Jiang Town Family Planning Office that either her daughter-in-
law or son would be forcibly sterilized upon returning to China.
The IJ and BIA thoroughly considered this and all other evidence set forth in the
record and we will therefore not disturb the BIA’s conclusions. First, both the IJ and BIA
noted that none of Tang’s documents had not been authenticated. Second, even assuming
they had been authenticated, the IJ and the BIA reasoned that the documents’ assertions
do not necessarily support Tang’s argument that forced sterilization would actually be
enforced—particularly as against Tang for children born in the United States. (Id. at 4-5
(“[E]ven if authentic, the documents do not show that the punishments for multiple
children would be carried out as written.”); see also id. at 42-43.) Lastly, both the IJ and
BIA reasonably relied upon documentation in the record supporting the Government’s
position. (See, e.g., id. at 4; id. at 36-40.) For example, the BIA pointed to commentary
R. Yuan to his forced sterilization. (App. 590-91; 609.) The BIA rejected this evidence
because, inter alia, Tang “has not indicated whether [R. Yuan’s] circumstances are
similar to her situation, . . . [which could be achieved by, for example, establishing] the
citizenship of [R. Yuan’s] children . . . .” (Id. at 5.) Here, the record does not make clear
whether R. Yuan’s children are citizens of the United States or China, and thus it remains
an open question whether the circumstances of R. Yuan and Tang are, or would be,
comparable.
5
in the 2007 Profile, which essentially concludes that “U.S. officials in China are not
aware of the alleged official policy at the national or provincial level mandating the
sterilization of one partner of couples that have given birth to two children in the United
States or abroad.” (Id. at 131-32; see also id. at 4, 37-38.) The BIA noted that the 2007
Profile also states that “the Population and Family Planning Commission of Fujian
Province stated in an October 2006 letter that children born abroad, if not registered as
permanent residents of China (i.e., not entered into the parents’ household registration),
are not considered as permanent residents of China, and therefore are not counted against
the number of children allowed under China’s family planning law.” (Id. at 4, 132.)
Given that the BIA considered all of the evidence in the record, together with the
IJ’s determinations and conclusions, and explained its reasons for balancing the evidence
as it did, we are not compelled to reach a conclusion contrary to that of the IJ and BIA.
Cf. Zhu v. Att’y Gen., ––– F.3d ––––, 2014 WL 815133, at *2-7 (3d Cir. Mar. 4, 2014)
(remanding where, in denying a motion to reopen, the BIA failed to “meaningfully
consider[] the evidence and arguments [petitioner] presented” and failed to explain why
the BIA rejected certain evidence). In the instant case, the BIA considered Tang’s village
documents despite acknowledging that the documents had not been authenticated. It
considered the 2007 Profile and determined that it constituted reliable evidence
undermining Tang’s position. And, it found that there was otherwise an absence of
sufficient evidence to show that Fujian Province’s family planning policy would be
applied to Tang despite the fact that her children were born in the United States.
Therefore, it was permissible for the BIA to find that Tang failed to meet her burden of
6
proof. See, e.g., Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir. 2008) (where “the BIA’s
explanation of why it decided to credit [State Department] reports” over evidence set
forth by petitioner was “well reasoned,” it “necessarily follows that the BIA’s resolution
of this matter was supported by substantial evidence”).
B. Religious Persecution
Regarding Tang’s religious persecution claim, substantial evidence also supports
the BIA’s determination that she failed to show a well-founded fear of future persecution.
Tang needed to show an objectively reasonable fear by showing either that she would be
individually selected for persecution or by demonstrating a “pattern or practice” of
persecution of Christians in China. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005)
(citing 8 C.F.R. § 208.13(b)(2)(iii)(A)). To support her claim, Tang asserted that she
began practicing Christianity in December 2010 and that, if removed to China, she would
continue to do so and would be persecuted for her practice. (See Appellant Br. 1-2, 11-
12.) The BIA acknowledged this testimony but also considered the fact that she only
began practicing Christianity after removal proceedings had commenced. (App. 4.)
Turning to evidence it found more persuasive than Tang’s testimony, the BIA next
considered the 2007 Profile, which indicates that there are “30 million to 100 million
unregistered Protestants and more than 5 million unregistered Catholics practic[ing] in
China,” and that while “local officials often move aggressively against unregistered
groups they regard as growing too large or espousing beliefs they consider threatening to
social stability, many house churches, which conduct Bible studies, prayer meetings, or
worship services, are quietly tolerated by local authorities.” (Id. at 4.)
7
Based on our review of the BIA and IJ decisions, together with the record before
us, we cannot say that the BIA erred in finding that Tang failed to meet her burden of
proof regarding establishing a well-founded fear of persecution due to her Christian
religion. See, e.g., Ambartsoumian v. Ashcroft, 388 F.3d 85, 90 (3d Cir. 2004)
(petitioners failed to establish well-founded fear of future persecution because of their
Christian religion and ethnicity).
III. Conclusion
We conclude that the evidence in the record does not provide a sufficient basis for
overturning the conclusions reached by the BIA. See Chen v. Ashcroft, 376 F.3d at 223
(“[A]fter reviewing the record as a whole we are convinced that the record evidence does
not compel us to reach a conclusion contrary to that of the IJ and the BIA.”). Since Tang
did not meet the standard for obtaining asylum, she also failed to satisfy the higher
burden of proof required for withholding of removal. Chen v. Att’y Gen., 676 F.3d at
117.4 For the foregoing reasons, we will deny the petition for review.
4
Since Tang “has not raised any argument regarding the denial of her CAT claim . . . we
deem her appeal of the CAT claim to have been waived.” Lie v. Ashcroft, 396 F.3d 530
at 532 n.1.
8