Ming Jie Lou v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1993
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MING JIE LOU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
___________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A99-523-016)
Immigration Judge: Eugene Pugliese
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
March 24, 2010
Before: AMBRO, CHAGARES and ALDISERT, Circuit Judges
(Opinion filed: May 20, 2010)
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OPINION
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PER CURIAM
Petitioner Ming Jie Lou, a citizen of China, seeks review of a final order of
removal. He fears persecution if removed based both on membership in an underground
Catholic church and on violations of China’s coercive family planning policies. However,
the only issue he raises on appeal is whether the decision of the Board of Immigration
Appeals (BIA) is “so conclusory and deficient that it leaves nothing for review.”
We do not believe the BIA’s decision to be so opaque that our review is frustrated.
This case is distinguishable from those in which we have remanded proceedings so that
the BIA can sufficiently explain the reasoning for its decision. Accordingly, we will deny
Lou’s petition for review.
I.
Lou entered the United States without inspection in October 2005, and he
conceded eligibility for removal. He sought asylum, withholding of removal, and
protection under the Convention Against Torture. A hearing was held on Lou’s
applications for relief, and he testified to the events in China related to the claims in those
applications. Lou testified that he had been a lifelong member in an underground Catholic
church. He had a Catholic wedding, and his wife gave birth to a daughter in December
2004. Lou’s wife became pregnant again in April 2005, but she was forced to undergo an
abortion for violating China’s one-child policy. Lou also testified that he was twice
arrested by police for his involvement in the underground church, and that each time he
was beaten while in detention.
The Immigration Judge (IJ) denied all relief, finding that Lou was not credible, and
that in any event he had not demonstrated either a well-founded fear of persecution or a
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likelihood of prospective torture. The BIA rejected the IJ’s adverse credibility
determination, but nonetheless dismissed Lou’s appeal, finding that he had not met his
burden of proof under any of the applicable standards. Lou appealed.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252.
See Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir. 2007). “Where the BIA
renders its own decision and does not merely adopt the opinion of the IJ, we review the
BIA’s decision, not that of the IJ.” Wong v. Att’y Gen., 539 F.3d 225, 230 (3d Cir. 2008)
(citation omitted). In the usual case, we review the BIA’s findings for substantial
evidence, upholding them “unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dia v. Ashcroft, 353 F.3d
228, 249 (3d Cir. 2003) (en banc). Any questions of law are reviewed de novo. See
Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005).
III.
As noted at the outset, Lou raises a single claim on appeal: that the BIA’s decision
is “so conclusory and deficient that it leaves nothing for review.” 1 He analogizes the
BIA’s decision in this case to those in two cases where we remanded proceedings to the
BIA, Miah v. Ashcroft, 346 F.3d 434 (3d Cir. 2003), and Awolesi v. Ashcroft, 341 F.3d
1Because this is the only claim raised by Lou in his brief, all other potential claims are
waived. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004).
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227 (3d Cir. 2003). We do not agree with Lou, however, that Awolesi and Miah are
analogous. In those cases, we found it impossible to decipher the BIA’s rationale for one
reason or another. By contrast, the BIA’s decision in this case, while succinct, provides
readily apparent reasons for rejecting each of Lou’s claims.
In Awolesi, the BIA reversed the IJ’s grant of asylum to a father and son from
Nigeria, “with only the opaque explanation that ‘the evidence is insufficient’ and ‘the
arguments made by the [INS] on appeal . . . are persua[sive].’” Id. at 229. We granted the
Awolesis’ petition for review and remanded for further proceedings because, as it stood,
the BIA’s decision left us unable to tell “whether the BIA was making a legal decision
that Awolesi was statutorily ineligible for asylum or whether it found Awolesi’s story
incredible.” Id. The BIA’s decision was only four sentences long and gave us “no
indication” as to “what evidence the BIA used to come to its decision.” Id. at 232-33.
In Miah, the IJ denied asylum to an alien from Bangladesh on the basis that he
lacked sufficient credibility and corroboration to sustain his burden of proof. The BIA
determined that the IJ’s credibility finding was clearly erroneous, but it dismissed the
appeal anyway, adopting the IJ’s adverse corroboration findings. This was error under our
precedent in Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir. 2001), and we stated as follows:
“Given that the IJ’s corroboration ruling was informed by its adverse credibility
determination, we conclude that the BIA should have conducted an independent
corroboration analysis.” Miah, 346 F.3d at 440. The BIA’s failure to explain its
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corroboration analysis made it “impossible for us to review its rationale.” Id. (quoting
Abdulai, 239 F.3d at 555).
Unlike in Miah and Awolesi, here we have no trouble importing the BIA’s
reasoning to conduct our review of Lou’s order of removal. When Lou appealed the IJ’s
decision, he raised four claims of error: (1) the IJ’s adverse credibility determination was
not supported by substantial evidence; (2) the IJ erred in finding that Lou had not suffered
past persecution on account of his religious activities; (3) the IJ erred in finding that Lou
had not suffered past persecution on account of China’s coercive population control
policy; (4) the IJ erred in finding that Lou did not have a well-founded fear of future
persecution on account of his religion; and (5) there were deficiencies in translation that
denied Lou a full and fair hearing.
The BIA expressly addressed each one of Lou’s claims.2 First, it agreed with Lou
that the IJ’s adverse credibility determination was not supported by substantial evidence,
as the determination was “not adequately specific.” Next, the BIA determined that Lou’s
alleged beatings while in police custody were not severe enough to constitute persecution
for the purpose of demonstrating past persecution on account of his religious activities in
China. Relying on Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008), the BIA rejected as a
2
We note that a BIA decision is not 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) (citation omitted). Instead, the BIA’s analysis merely must be adequate to
allow for meaningful review of the BIA’s decision, and the BIA is not required to write
an exegesis on every contention. Id. (citation omitted).
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matter of law Lou’s attempt to impute past persecution from his wife’s forced abortion.
The BIA noted that Lou had failed to allege that he personally was persecuted or faced
future persecution “for resistance to China’s population control policies.” The BIA also
rejected Lou’s claim that he possessed “a well-founded fear of persecution on account of
his religious beliefs” because “his [church] activities do not appear to be significant.” In
addition, the BIA determined that the documentary evidence presented on appeal, which
purported to demonstrate a pattern or practice of persecution against Catholics in China,
did not warrant a remand to the IJ because there was no explanation why the documents
that predated the IJ’s decision were not brought to the IJ’s attention. Finally, the BIA
determined that Lou received a full and fair hearing, noting that Lou’s allegation of
deficiencies in translation was ‘cursory’ and did not establish any shortcoming warranting
reversal.
We express no opinion on whether the BIA’s rejections of Lou’s claims were
supported by substantial evidence. Those issues are not before us. Instead, we hold only
that the reasoning of the BIA was sufficiently presented in its written decision. As a
result, we will deny Lou’s petition for review.
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