Peng Ye v. Eric Holder, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1738
PENG FEI YE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 18, 2013 Decided: October 16, 2013
Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
ARGUED: Scott Eric Bratton, MARGARET WONG & ASSOCIATES, LPA,
Cleveland, Ohio, for Petitioner. Jonathan Aaron Robbins, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Stuart F. Delery, Principal Deputy Assistant Attorney
General, Shelley R. Goad, Assistant Director, Kristen Giuffreda
Chapman, Civil Division, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Petitioner Peng Fei Ye (“Petitioner”), a native and
citizen of the People’s Republic of China, petitions for review
of the final order of the Board of Immigration Appeals (“BIA”)
affirming the denial of his application for asylum, withholding
of removal, and protection under Article 3 of the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“CAT”). Petitioner contends the BIA
erred in finding he did not demonstrate past persecution or a
well-founded fear of future persecution on account of his
resistance to China’s coercive population control program.
Because we agree with the BIA that Petitioner’s claims for
relief are premised almost entirely on persecution suffered by
his wife, we find that its decision is legally sound and
supported by substantial evidence. Consequently, we deny the
petition for review.
I.
Petitioner married his wife, also a native and citizen
of China, in 1997. Approximately one year later, the couple
gave birth to their first child, a son. Soon after, Chinese
family planning authorities forced Petitioner’s wife to have an
intrauterine device (“IUD”) inserted pursuant to the population
control policies of the Fujian Province, where the couple
resided. In April 2001, Petitioner and his wife retained a
2
private physician to remove the IUD so that they could conceive
another child.
Petitioner’s wife became pregnant in June 2001. She
left home and went into hiding with her aunt’s family in a
different village. Petitioner also left home in order to avoid
the government officials tasked with enforcing the one-child
policy. In September of that year, Chinese officials learned
Petitioner’s wife was pregnant. They transported her to a
hospital, forcibly terminated her pregnancy, and inserted a
second IUD. Petitioner, who was living and working in a
different city, did not learn of his wife’s abortion or second
IUD until after the procedures were complete. According to
Petitioner, the officials warned his wife that either she or
Petitioner would be sterilized if she became pregnant again.
Several months later, with the help of a professional
smuggler, Petitioner made the first of three attempts to flee
China for the United States. His first two attempts were
thwarted after he had left China, and he returned to China
twice without incident. He left China for the last time on
June 1, 2002, and entered the United States shortly thereafter.
On May 20, 2003, Petitioner filed an application for asylum,
withholding of removal, and CAT protection based on the
foregoing events. His wife and child remain in China.
3
On April 18, 2006, Petitioner appeared for a merits
hearing before an Immigration Judge (“IJ”) in Baltimore,
Maryland. At the conclusion of that hearing, the IJ denied his
application for asylum on timeliness grounds but granted his
application for withholding of removal based on his wife’s
forced abortion. In granting withholding relief, the IJ relied
on then-binding BIA precedent conferring automatic refugee
status to the spouse of a person forced to abort a pregnancy.
See Matter of C-Y-Z-, 21 I. & N. Dec. 915, 918-19 (B.I.A. 1997)
(en banc). The IJ did not address Petitioner’s eligibility for
CAT protection.
Both Petitioner and the government appealed the IJ’s
decision. On appeal, Petitioner challenged the denial of his
asylum claim, and the government sought review of the grant of
his withholding claim. The BIA remanded the case on February
20, 2008, directing the IJ to make a specific credibility
finding and “clear findings” as to whether Petitioner was
eligible for asylum or withholding based on his wife’s forced
abortion. J.A. 195. 1 Three months later, while the case was
pending before the IJ, the Attorney General abrogated the rule
set forth in Matter of C-Y-Z- and concluded that the spouse of
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
4
someone forced to undergo an involuntary abortion is not per se
entitled to refugee status. See Matter of J-S-, 24 I. & N.
Dec. 520, 537-38 (A.G. 2008). Rather, in order to qualify for
relief, an applicant in Petitioner’s position would have to
demonstrate he suffered past persecution or has a well-founded
fear of persecution on account of his own “other resistance” to
China’s population control program. Id. at 538.
Relying on this new authority, the IJ issued a
decision on remand denying Petitioner’s asylum, withholding,
and CAT claims on the merits. Although the IJ determined
Petitioner was credible and had, in fact, filed a timely
application for asylum, she concluded he had not made the
requisite showing of personal resistance or persecution under
Matter of J-S-.
Petitioner once again appealed the decision to the
BIA. On May 30, 2012, the BIA dismissed the appeal. In
adopting and affirming the IJ’s decision, the BIA agreed
Petitioner had failed to establish either resistance or
persecution as defined by Matter of J-S-. The BIA also found
Petitioner had not shown any other grounds for eligibility.
Petitioner now seeks review from this court.
II.
Where, as here, the BIA has expressly adopted the IJ’s
decision and included its own reasons for affirming, we are
5
obliged to review both decisions on appeal. See Barahona v.
Holder, 691 F.3d 349, 353 (4th Cir. 2012). We evaluate the
BIA’s legal determinations de novo, “affording appropriate
deference to the BIA’s interpretation of the INA and any
attendant regulations.” Li Fang Lin v. Mukasey, 517 F.3d 685,
691-92 (4th Cir. 2008). The BIA’s factual findings are
“conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see
also Crespin-Valladares v. Holder, 632 F.3d 117, 124 (4th Cir.
2011). We will affirm the BIA’s determination regarding
eligibility for asylum or withholding of removal if it is
supported by substantial evidence on the record considered as a
whole. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
III.
The central issue before us is whether Petitioner
demonstrated past persecution or a well-founded fear of future
persecution on account of his political opinion, thereby
entitling him to asylum, under the following provision:
[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 a 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 such persecution for such failure, refusal, or
resistance shall be deemed to have a well founded fear
of persecution on account of political opinion.
6
8 U.S.C. § 1101(a)(42)(B) (emphasis supplied). Petitioner
contends he qualifies for asylum under this subsection because
he has been persecuted for his “other resistance” to China’s
one-child policy and has a well-founded fear of future
persecution based on the same. We conclude, however, that the
decisions of the BIA and IJ (collectively “the agency”) are
supported by substantial evidence.
Consistent with Matter of J-S-, we have held, “an
applicant who establishes that his spouse was subjected to a
forced abortion is not ‘entitled to refugee status under
[§ 1101(a)(42)(B)]’ based on that fact alone, but rather must
establish a well-founded fear of persecution in his own right.”
Yi Ni v. Holder, 613 F.3d 415, 425 (4th Cir. 2010) (quoting
Matter of J-S-, 24 I. & N. Dec. 520, 537-38 (A.G. 2008)).
Applicants can satisfy this burden by presenting evidence
showing they suffered persecution “for engaging in ‘other
resistance’ to a coercive population control program[.]” Matter
of J-S-, 24 I. & N. Dec. at 535. In other words, Petitioner
must demonstrate (1) he “‘resisted’ China’s coercive population
control program”; (2) he “suffered or has a well-founded fear
that he will suffer ‘persecution’ by the Chinese government”;
and (3) such persecution was or would be “inflicted ‘on account
of’” his resistance. Id. at 542.
7
We first consider whether the record compelled the
agency to conclude Petitioner suffered persecution on account of
his resistance to China’s family planning policy. Petitioner
argues he “resisted” the policy within the meaning of
§ 1101(a)(42) when he assisted his wife in the removal of her
IUD, deliberately conceived an unauthorized child, and hid from
the authorities. The agency disagreed. We find it unnecessary
to review this particular dispute because, even assuming
Petitioner’s conduct amounts to “other resistance,” the agency
properly found he did not suffer persecution on account of that
resistance. See 8 U.S.C. § 1101(a)(42); Matter of J–S–, 24 I. &
N. Dec. at 520. 2
Petitioner himself was never arrested, detained,
sterilized, or physically mistreated by the family planning
authorities. Indeed, he presented no evidence the authorities
were even aware of his alleged resistance to the family planning
policy, much less that they took any action “on account of” such
resistance. See Mei Fun Wong v. Holder, 633 F.3d 64, 79 (2d
2
The record belies Petitioner’s assertion that the agency
did not reach this issue. See J.A. 113 (finding Petitioner had
presented no evidence “that he was punished for ‘other
resistance to a coercive population control program.’ What the
record reflects is that his wife was forcibly subjected to an
abortion and that [Petitioner] left China.”). Although
Petitioner may have preferred a more fulsome analysis, it is
difficult to imagine how the agency could have done so where, as
here, it had no other evidence of persecution to analyze.
8
Cir. 2011) (recognizing the requirement of a nexus between the
persecution and the applicant’s “other resistance”). Rather, as
the IJ found, “the evidence shows that the authorities targeted
only his wife[.]” J.A. 113. While the treatment of
Petitioner’s spouse is undoubtedly relevant to his claim, it
does not, standing alone, carry his evidentiary burden. Matter
of J-S-, 24 I. & N. Dec. at 534-35. Accordingly, we conclude
the agency’s finding that Petitioner failed to establish past
persecution is supported by substantial evidence. 3
We turn next to the question of whether the agency was
compelled to conclude Petitioner demonstrated a well-founded
fear of future persecution on account of his resistance to
China’s family planning policy. Petitioner’s argument in this
regard is derived almost entirely from his testimony that family
3
To the extent Petitioner argues he had inadequate
opportunity to litigate this claim in light of the change in the
law wrought by Matter of J-S-, our review of the record leads us
to conclude otherwise. The Attorney General issued Matter of J-
S- while this case was pending before the IJ on remand, and
Petitioner had ample opportunity to present his claim to the
agency within the framework of that decision. Indeed,
Petitioner never sought to reopen the evidentiary record before
the IJ, and he has not, to date, provided even the vaguest hint
of the kind of evidence he would present if given such an
opportunity. In short, Ye has failed to identify any evidence
or argument with respect to his “other resistance” claim that
has not been “adequately considered or developed before the
[IJ],” Matter of J-S-, 24 I. & N. Dec. at 543 n.15, and the BIA
did not err in failing to remand his case, once again, to the
IJ.
9
planning officials told his wife they would sterilize either her
or Petitioner if she violated the population control policy “in
the future.” J.A. 384. As the agency found, however, there is
no indication in the record that, if deported, Petitioner will
engage in behavior that would bring him within the purview of
this threat. See Yi Ni, 613 F.3d at 429. His claimed fear of
sterilization, consequently, is “speculative” and “depend[ent]
on many factors outside of [his] control.” Id. Indeed,
Petitioner suffered no threats or harm when he twice returned to
China after his initial attempts to flee, and he does not claim
any threat has arisen in the years since he departed. Thus, we
conclude the agency’s finding that Petitioner failed to
demonstrate a well-founded fear of future persecution is
supported by substantial evidence.
Inasmuch as Petitioner has failed to demonstrate
either that he experienced past persecution or that he has a
well-founded fear of future persecution on account of a
statutorily protected ground, he cannot establish eligibility
for asylum. Further, as the standard for statutory withholding
of removal is more stringent than the standard for granting
asylum, Petitioner’s failure to satisfy these requirements
necessarily means he cannot meet the higher standard for
withholding of removal. See Camara v. Ashcroft, 378 F.3d 361,
367 (4th Cir. 2004). We likewise conclude the agency’s denial
10
of Ye’s CAT claim is supported by substantial evidence. See
Dankam v. Gonzales, 495 F.3d 113, 118-19 (4th Cir. 2007).
IV.
For the foregoing reasons, we deny Petitioner’s
petition for review.
PETITION DENIED
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