En Wu v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-3018
___________
EN SHI WU,
AKA Guo En Shi,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A089-098-919)
Immigration Judge: Honorable Michael W. Straus
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 3, 2014
Before: FUENTES, SHWARTZ and ROTH, Circuit Judges
(Opinion filed: December 9, 2014)
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OPINION*
___________
PER CURIAM
*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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Pro se petitioner En Shi Wu seeks review of the Board of Immigration Appeals’
(“BIA”) final order of removal. For the following reasons, we will grant the petition for
review in part, dismiss it in part, and deny it in part, and we will vacate the BIA’s order
and remand for further proceedings.
I.
Wu is an ethnic Korean and a citizen of China. In 2008, she entered the United
States without inspection and was placed in removal proceedings for failing to possess
valid entry documents. In April 2009, Wu conceded her removability before an
Immigration Judge (“IJ”) and applied for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”).
After several delays, including a transfer of the case from Texas to New Jersey,
Wu’s merits hearing before the IJ occurred on March 12, 2012. Wu asserted that she had
been persecuted in China due to her political opinion because she and her husband had
harbored North Korean refugees. When the refugees were apprehended by the Chinese
police, Wu and her husband believed that they themselves were unsafe. Wu and her
husband fled to another part of China, where they lived for four months until they could
secure passage to the United States. Wu believes that she will be punished if she returns
to China because she harbored North Korean refugees.
Wu also alleged that if she returned to China, she would be persecuted because she
converted to Christianity soon after arriving in the United States. She attends a non-
denominational Protestant church with a largely Korean congregation. She testified that
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she will continue to practice Christianity in China but will not attend a government-
sanctioned church. Wu testified that she knows of one person who got into trouble after
joining an underground church in China. Wu’s pastor testified on her behalf, stating that
Wu is a devoted Christian and that he believes she would continue her religious activities
wherever she lives. In support of her claim, Wu submitted several documents, including
the United States State Department’s 2009 International Religious Freedom Report for
China and its 2007 Profile of Asylum Claims and Country Conditions.
The IJ denied Wu’s claims for relief. The IJ first found that Wu had not suffered
any past persecution, because there was “no evidence that she was ever harmed” due to
hiding North Korean refugees. (A.R. at 68.) The IJ also determined that Wu did not
establish that she had a well-founded fear of future persecution on account of her hiding
North Korean refugees, because there was no “basis to indicate that the Chinese
government in this case ascribed or imputed any sort of political opinion” on Wu. ( Id. at
69.)
The IJ also rejected Wu’s claim that she was eligible for relief due to a fear of
future persecution based on her conversion to Christianity. The IJ determined that the
background materials indicated that there are “many millions of Chinese who attend
underground or house churches and that they are treated unevenly throughout the
country,” (id. at 70), and the IJ “did not see anything specifically to indicate that ethnic
Koreans going to Korean Protestant churches are specifically targeted in China,” (id. at
71). The IJ determined that there was “simply not enough evidence to show that merely
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being a Christian and wanting to go to an unregistered Protestant church results in a
finding that it is more likely than not [Wu] would be persecuted for that.” (Id.)
Accordingly, the IJ denied Wu’s claims for asylum and withholding of removal. The IJ
also denied Wu’s CAT claim, concluding “that she simply has failed to meet her burden
of proof that it is more likely than not she would be tortured.” (Id. at 73.)
On appeal to the BIA, Wu, through counsel, challenged only the IJ’s rejection of
her religion-based claims. On May 21, 2014, the BIA affirmed the IJ’s decision and
dismissed Wu’s appeal. The BIA held that Wu had not demonstrated a reasonable
possibility that she would be singled out for persecution based on her practice of religion,
nor had she demonstrated a “systematic, pervasive or organized pattern or practice of
persecution of Protestants or Christians in China based upon this record.” (Id. at 3.) The
BIA also agreed with the IJ that Wu had not established that she was eligible for CAT
protection.
Wu timely petitioned this Court for review.
II.
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C.
§ 1252(a)(1). We generally review only the BIA’s decision, but may look to the IJ’s
decision insofar as the BIA defers to it. See Huang v. Att’y Gen., 620 F.3d 372, 379 (3d
Cir. 2010). We review an agency’s factual findings, which include its findings as to
whether a petitioner has demonstrated a well-founded fear of future persecution, for
substantial evidence. See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006).
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Under this deferential standard of review, we must uphold those findings “unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B).
The Government argues that Wu has waived her religion-based claims, and that
she failed to exhaust her claims relating to the North Korean refugees because she did not
present them to the BIA. We agree that Wu did not exhaust the latter set of claims;
therefore, we do not have jurisdiction to consider them. See Abdulrahman v. Ashcroft,
330 F.3d 587, 594-95 (3d Cir. 2003) (citing 8 U.S.C. § 1252(d)(1)). 1 We also agree that
Wu has waived her religion-based CAT claim by failing to raise it before this Court. See
United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005). However, although Wu’s
brief is not a model of clarity, under the liberal construction afforded to pro se filings, see
Higgs v. Att’y Gen., 655 F.3d 333, 339-40 (3d Cir. 2013), we find that she has not
waived her religion-based future persecution claim.
Where, as here, a petitioner seeking asylum does not allege past persecution, she
must demonstrate a well-founded fear of future persecution. See Chavarria, 446 F.3d at
516. For this fear to be well-founded, it “must be both subjectively and objectively
reasonable.” Dong v. Att’y Gen., 638 F.3d 223, 228 (3d Cir. 2011). “To establish
objective reasonableness, [a] petitioner[] must show that a reasonable person in [her]
circumstances would fear persecution if returned to [the country in question].” Chen v.
1To the extent that Wu attempts to raise new claims in her submissions to this Court,
such claims are outside the scope of our review. See Abdulrahman, 330 F.3d at 594-95.
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Att’y Gen., 676 F.3d 112, 115 (3d Cir. 2011) (internal quotation marks omitted). To
satisfy the objective prong, the petitioner must show either that (1) she would be singled
out for persecution on account of a protected ground, or (2) there is a pattern or practice
of persecuting similarly situated people on account of a protected ground. See Lie v.
Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005).
As to Wu’s fear of future persecution due to her religion, the BIA stated that
“[t]here is no clear error in the [IJ]’s finding that [Wu] has not established that Chinese
authorities presently are aware of her religious conversion in the United States, or likely
would become aware of her religious practice after her return to China.” (A.R. at 3.) The
IJ’s decision, however, made no such finding, and the BIA was not permitted to make
that finding in the first instance. See 8 C.F.R. § 1003.1(d)(3)(iv) (“Except for taking
administrative notice of commonly known facts such as current events or the contents of
official documents, the Board will not engage in factfinding in the course of deciding
appeals.”). Nevertheless, it appears that the BIA mistakenly relied on that purported
finding when it concluded that Wu “has not demonstrated a reasonable possibility that
she would be singled out individually for persecution based on her practice of religion
after her return to China.” (Id.) Because a petitioner may prove an objective fear of
future persecution by demonstrating a pattern or practice of persecution or that she will
be singled out for persecution, it was necessary that the BIA’s determination as to both
prongs be supported by substantial evidence. However, it appears that the BIA based its
decision concerning whether Wu would be singled out for persecution on its mistaken
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reading of the IJ’s opinion. While we do apply the harmless error doctrine in
immigration proceedings, we cannot say that that the BIA’s error in this case was
harmless. See Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d Cir. 2011) (holding that an
error is harmless where it is “highly probably that the error did not affect the outcome of
the case”). We will thus vacate the BIA’s final order of removal and remand so that the
BIA may re-evaluate Wu’s claim that she would be singled out for persecution due to her
religion.
On remand, the BIA need not revisit its finding that Wu did not establish a pattern
or practice of persecution against Protestants or Christians in China, as substantial
evidence in the record supports the BIA’s conclusion. To establish such a claim, a
petitioner must demonstrate that persecution of the group is “systemic, pervasive, or
organized.” Lie, 396 F.3d at 537 (quotation marks omitted). The evidence in the
Administrative Record shows that the Chinese government’s treatment of religious
groups varies by region, and that, in some instances, unregistered churches are quietly
tolerated by Chinese authorities. While there are examples of abuse and repression of
some unregistered churches, we cannot say that the record compels a finding that there is
a pattern or practice of persecution in China.
For the foregoing reasons, we will grant the petition for review in part, dismiss it
in part, and deny it in part. We will vacate the BIA’s final order of removal and remand
for further proceedings consistent with this opinion.
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