Cheng Xi Li v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1557
___________
CHENG XI LI,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_______________________
On Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A097-391-147
(Immigration Judge: Honorable Steven A. Morley)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 20, 2017
Before: AMBRO, KRAUSE, and SCIRICA, Circuit Judges.
(Opinion Filed: October 26, 2017)
________________
OPINION*
________________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge
Petitioner Cheng Xi Li petitions for review of a final order of removal. Li
challenges the decisions of the Immigration Judge (“IJ”) and Board of Immigration
Appeals (“BIA”) dismissing her applications for asylum, withholding of removal, and
protection under Article 3 of the United Nations Convention Against Torture. Because
substantial evidence supports the IJ’s finding that Li did not demonstrate a well-founded
fear of future persecution, we will deny the Petition for Review.
I.
Petitioner Li is a native and citizen of the People’s Republic of China. The IJ set
forth the history of this matter in his January 21, 2015 interlocutory decision [AR 352]
and June 14, 2016 decision, [AR 67], and therefore we do not repeat it at length.
This Petition arises from Li’s application for asylum on the basis of her conversion
to Christianity and fear of religious persecution in China.1 An IJ conducted a hearing on
the merits of Li’s application on June 23, 2015. Li waived direct examination, therefore
the hearing involved a cross-examination of Li and the testimony of two witnesses,
Reverend David R. Carey and Reverend Sue Czarnecki. [AR 282-302]. The IJ found Li
to be a credible witness but denied her asylum application because she failed to establish
1
Li first entered the United States on August 17, 2003, and has previously filed
applications for asylum based on persecution under China’s family planning policies and
her involvement in the pro-democracy movement. On remand from the United States
Court of Appeals for the Eleventh Circuit, the IJ determined that Li was no longer
pursuing those claims and addressed only Li’s application for asylum on the basis of her
fear of religious persecution. [AR 70]. Li did not appeal this determination to the BIA.
[AR 4].
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a reasonable likelihood of persecution were she to return to China. [AR 80-85]. The BIA
affirmed on February 16, 2017, and Li timely filed this Petition for Review. 2
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252.
Venue is proper because the proceedings before the IJ were concluded within this Circuit.
8 U.S.C. § 1252(b)(2). While we normally review the BIA’s decision, when the BIA
substantially relies on the IJ’s reasoning, we may consider both the IJ’s and the BIA’s
opinions. See, e.g., Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004).
Whether an asylum applicant has demonstrated a well-founded fear of future
persecution is a factual question reviewed under the substantial evidence standard. See
Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003). Under this “extraordinarily
deferential standard,” Abdulrahman v. Ashcroft, 330 F.3d 587, 598 (3d Cir. 2003),
findings will be upheld if they are “supported by reasonable, substantial, and probative
evidence on the record considered as a whole,” Lin-Zheng v. Att’y Gen., 557 F.3d 147,
155 (3d Cir. 2009) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). We
reverse only if “any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B).
2
Li does not appeal, and has accordingly waived, the BIA’s determinations that: (1) she
failed to establish a pattern or practice of persecution of persons similarly situated to her;
(2) she is not entitled to protection under the Convention Against Torture; and (3) the
forced clandestine practice of Christianity is itself a form of persecution. See United
States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well settled that an appellant’s
failure to identify or argue an issue in his opening brief constitutes waiver of that issue on
appeal.”).
3
III.
Under the asylum statute, 8 U.S.C. § 1158, asylum is available at the discretion of
the Attorney General for any alien who qualifies as a “refugee” as defined in 8 U.S.C.
§ 1101(a)(42)(A). Past persecution triggers a rebuttable presumption of a well-founded
fear of future persecution. See Singh v. Gonzales, 406 F.3d 191, 195–96 (3d Cir. 2005).
Absent past persecution, the applicant bears the burden to establish a well-founded fear of
persecution, “which encompasses threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or freedom.” Yu v. Att’y Gen.,
513 F.3d 346, 348 (3d Cir. 2008) (internal quotation marks and citation omitted). To
demonstrate a well-founded fear of future persecution, an asylum applicant must
demonstrate a subjectively genuine fear of persecution and “an objectively reasonable
possibility of persecution.” Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 591 (3d
Cir. 2011).
An applicant is entitled to withholding of removal if he or she “can satisfy the
higher burden of demonstrating that it is more likely than not that life or freedom would
be threatened because of a protected ground if he or she were removed.” Li v. Att’y Gen.,
400 F.3d 157, 162 (3d Cir. 2005). An applicant who cannot demonstrate eligibility for
asylum necessarily cannot qualify for withholding of removal. See Paripovic v. Gonzales,
418 F.3d 240, 246 (3d Cir. 2005).
Li challenges the IJ’s and BIA’s determinations that she did not establish a
well-founded fear of persecution and raises three issues in her Petition for Review: (1)
whether the IJ and BIA erred in predicting Li would not attempt to proselytize were she
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forced to return to China; (2) whether the BIA engaged in unauthorized factfinding
concerning the likelihood of Li being persecuted were she to return to China; and (3)
whether agency factfinding errors tainted other findings regarding the degree of harm Li
would encounter in China. We address each in turn.
A.
We first consider Li’s argument that the IJ and BIA erred in finding she would not
attempt to proselytize if removed to China. Li alleges that the IJ failed to address her
written account of spreading the Gospel (particularly after he found her to be credible),
sworn statements “from individuals with first-hand knowledge of Li’s proselytizing in the
United States,” Pet’r’s Br. at 22, and a letter from the Brooklyn church Li first attended
noting that she “led three persons to listen the Gospel at our church up to now,” id. at 24.
Although the evidence Li raises supports her claim that she will proselytize upon
return to China, nothing in the record as a whole compels this conclusion. The IJ’s
findings explain that Li “attends church a couple times a month, but does not teach
Sunday school, lead adult prayers, act as a lay leader, or even assume lay-leadership roles
of an institutional, albeit not necessarily religious nature.” AR 81. This conclusion is
substantially supported by evidence in the record.
First, neither pastor who testified in support of Li stated she had proselytized in
the United States. [AR 282-302]. For example, when asked whether Li engaged in
activities of the church, Reverend Czarnecki stated only that “[s]he did some volunteer
work for the church, and for our day school.” AR 298. Pastor Carey testified he knew Li
only as “an acquaintance,” AR 289, and stated that his letter describing Li as a “regular
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participant[] in the life of our church” was written “a while ago,” AR 290, and was not
based on personal knowledge but “on the prior knowledge of the former pastor”
Reverend Czarnecki, AR 291. Furthermore, Li herself admitted to attending church “once
every two weeks,” AR 271, and spoke only of her intention to preach the Gospel in the
future (i.e., upon return to China) during cross-examination. [AR 277].
During Li’s hearing, the IJ acknowledged the “documentation in the record with
regard to her involvement in church, and her involvement as an active Christian here in
the United States.” AR 234. The IJ described the exhibits Li submitted in support of her
application and referenced the evidence Li points to in her Petition.3 A more precise
analysis in the IJ’s oral opinion would have addressed the sworn statements, but an IJ
“need not discuss each and every piece of evidence presented by an asylum applicant
when rendering a decision, as long as that decision is substantially supported.” Yan Lan
Wu v. Ashcroft, 393 F.3d 418, 425 n.10 (3d Cir. 2005). As we have explained, “[w]e will
not hold . . . that a [] decision is insufficient merely because its discussion of certain
issues could have been more detailed.” Toussaint v. Att’y Gen., 455 F.3d 409, 414 (3d
Cir. 2006) (internal citation and quotation marks omitted); see also Sevoian v. Ashcroft,
290 F.3d 166, 178 (3d Cir. 2002). Here, the record as a whole does not compel a
conclusion that Li will preach the Gospel in China, particularly in light of the evidence
emphasized by the IJ suggesting a lack of church leadership.
3
The sworn statements from Meihui Huang and Yongchao Liu were submitted as Exhibit
R17-T; the sworn statement from Wei Chen was submitted as Exhibit R7-I; and the letter
from the pastor of the Brooklyn church Li first attended was submitted as Exhibit R4-D.
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We also note the record reflects a careful consideration of the country conditions
reports. These reports demonstrate that millions of Protestants practice in underground
churches in China and local enforcement is inconsistent and sporadic. [AR 79-80]. The
U.S. State Department’s 2013 International Religious Freedom Report for China, for
example, states “[i]n parts of the country, local authorities tacitly approved of or did not
interfere with the activities of some unregistered groups.” AR 573. And, while in other
parts of the country local authorities restrict meetings, confiscate property, and detain
worshippers, enforcement primarily focuses on church leaders. [AR 573]. This is
particularly true in Fujian (the province where Li was born), where authorities primarily
destroy property and target church leaders. [AR 479-483].
To secure asylum, there must be a serious threat to life or liberty. In Fatin, we
explained the term “persecution” includes “threats to life, confinement, torture, and
economic restrictions so severe that they constitute a threat to life or freedom,” and made
clear that persecution refers only to “severe” conduct and “does not encompass all
treatment that our society regards as unfair, unjust or even unlawful or unconstitutional.”
Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993). As the IJ correctly noted, “isolated
incidents that do not result in serious injury do not rise to the level of persecution.” Voci
v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005).
Thus, the country conditions evidence further supports the IJ’s ultimate finding
that Li did not demonstrate a well-founded fear of future persecution. As the IJ reasoned,
“if this record showed an escalating punishment, from a warning, to a brief detention, to a
longer detention, to a reeducation camp where torture is common, the court could
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conclude that a committed religious follower was at risk of persecution . . . . But that’s
not the record in this case.” AR 84. We therefore hold the IJ’s decision supported by
substantial evidence.
B.
We also hold the BIA did not engage in unauthorized factfinding concerning the
likelihood of Li’s persecution upon return to China. Li argues the only way the BIA could
uphold the IJ’s decision is to assign the sworn statements and letter from the Brooklyn
church “limited or no weight.” Pet’r’s Br. at 26. And, she contends, “because weighing
evidence is an essential aspect of fact-finding, this move by the Board, in an attempt to
rehabilitate the IJ’s factfinding with factfinding of its own, is an error of law.” Id.Contrary to Li’s assertion, the BIA’s analysis of the IJ’s decision does not
improperly weigh evidence. Instead, the BIA makes a legal conclusion that the evidence
presented by Li did not establish clear error in the IJ’s finding. “[A] review of the factual
record by the BIA does not convert its discretionary determination as to whether a
petitioner warrants [relief] into improper factfinding.” Wallace v. Gonzales, 463 F.3d
135, 141 (2d Cir. 2006); see also Jianli Chen v. Holder, 703 F.3d 17, 23 (1st Cir. 2012)
(“Although the BIA may not engage in independent factfinding, it has the prerogative—
indeed, the duty—of examining the basis for, and then synthesizing and analyzing, the
IJ’s findings.”).
C.
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Because we find no error in the IJ’s factfinding and BIA’s decision, we need not
address Li’s final argument that agency factfinding errors tainted other findings regarding
the degree of harm Li would encounter in China.
IV.
For the foregoing reasons, we will deny the Petition for Review.
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