Qinglin Cheng v. Holder

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 12, 2009
No. 07-60464 Charles R. Fulbruge III
Clerk
QINGLIN CHENG,
Petitioner,
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95 585 785
Before JONES, Chief Judge, and OWEN and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Qinglin Cheng, a citizen of the People’s Republic of China, has petitioned
for review of a Board of Immigration Appeals (BIA) denial of his application for
asylum, withholding of removal, and relief under Article 3 of the United Nations
Convention Against Torture (CAT).1 Cheng argues that the immigration judge
(IJ) erred in requesting additional corroborative evidence and in finding that
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
1
See 8 C.F.R. § 208.16.
No. 07-60464
Cheng did not establish past persecution or a well-founded fear of future
persecution. For the reasons discussed below, we deny the petition for review.
I
In 2002, the United States instituted removal proceedings against Cheng,
alleging that he was an alien present in the United States without admittance
or parole. Cheng admitted the government’s allegations but filed an application
for asylum, withholding of removal, and relief under the CAT. In his application,
Cheng claimed he feared that removal to China would result in imprisonment
and a loss of freedom to practice his Christian religion.
At the evidentiary hearing before the IJ, Cheng testified that a friend’s
family introduced him to the Bible and Christianity and that he was baptized in
1995. Beginning in 1995, Cheng and a group of eight or nine teenagers, including
his brother, met at a home to read and discuss the Bible and pray. Cheng
testified that he believed the meetings were not illegal, but the local government
warned the group three or four times not to participate in “superstitious
activities” or to form an “underground church.”
After the group received the warnings, the local police came to a meeting
and arrested the attendees, claiming that the discussions were antigovernment
and antiparty and that the group was disturbing the peace. Prison guards told
Cheng that documents “issued from the top” were served for his arrest, but Cheng
did not see the papers. Following his arrest, Cheng was interrogated and
instructed to write a letter stating that he regretted his actions. The other group
members wrote such letters and were released. When Cheng refused, a police
officer cursed at Cheng, threatened him with a police baton, and hit him in the
waist. Cheng felt dizzy, threw up, and fainted.
2
No. 07-60464
Cheng was transferred to a temporary jail, where he remained for eight or
nine days. While he was in custody, the police continued to interrogate him and
demand that he write an apology letter. The guards also laughed when Cheng
was hit by another inmate and ignored Cheng’s pleas for assistance. Cheng was
eventually released after his father arranged for a payment of 5,000 renminbi.
The police did not provide any documentation of the payment.
Following his release, Cheng went home and visited a private physician.
He said that he did not go to an official clinic because it was “too expensive and
too much trouble.” Cheng testified that there were no records of his treatment,
and when asked why, Cheng stated that “it was on the street and all neighbors
go for any kind of illness (indiscernible).” Cheng attempted to return to school,
but the school told him he could not attend “because [he] was involved in religious
or superstitious activities.” Cheng was also unable to obtain a local job because
of his arrest, so he went to another province to look for work. After leaving home,
Cheng was required to check in periodically with the local police station in his
home province by telegraphed messages. Cheng had trouble retaining
employment in other provinces because of his ongoing reporting requirement and
correspondence with the police in his home province; when employers saw that
Cheng received telegrams from a police station “they would assume that [he] did
something illegal so they [would] fire” him.
After briefly attending government churches in the other provinces, Cheng
attended weekly meetings similar to the group meetings he had attended in his
home province. Cheng learned of the groups through contacts he made while
working in a jewelry shop; Cheng would ask customers that came into the store
3
No. 07-60464
seeking crosses for information about local churches. He was not arrested in the
other provinces.
The group in Cheng’s home province continued to meet, but less frequently
than before their arrest, and the group moved meeting locations frequently to
avoid government interference. Cheng’s brother similarly lived in different
provinces and checked into the police station, though he was required to check
in less frequently because he signed a letter admitting his guilt. His brother
continued to attend the underground churches and had not been arrested. Cheng
testified that similar groups were forced to disband and that his mother told him
about a woman who was arrested and sentenced to a year and a half for
antigovernment and antiparty discussions and an illegal gathering.
In 2001, Cheng left China after paying a smuggler to bring him to the
United States through Hong Kong and South America. Cheng stated that he left
because of a lack of religious freedom and the requirement that he report back to
his home police station. Cheng continued to practice his religious beliefs in the
United States, and, when asked, he was able to name several books of the New
Testament.
Cheng testified that he would be arrested if he returned to China because
of his religious beliefs and his failure to report to the police in his home province.
After he left China, the police told Cheng’s family that they must report to the
police station upon Cheng’s return or be arrested and charged with aiding a
criminal.
In addition to Cheng’s testimony, the IJ considered a letter from Cheng’s
mother, a transcript of a hearing held by the United States Commission on
International Religious Freedom, an Associated Press article, the U.S.
4
No. 07-60464
Department of State’s International Religious Freedom Report for 2002, a
Human Rights Watch report, a U.S. Department of State Country Report on
Human Rights Practices for 2001, and a U.S. Department of State publication
from 1998 entitled China: Profile of Asylum Claims and Country Conditions.
The IJ found Cheng credible but also found that he failed to submit
corroborating documents that should have been reasonably available, including
documentation of his arrest, letters from his church colleagues who were also
arrested with him, and a medical report verifying the injuries he received when
he was in prison. The IJ found that Cheng failed to meet his burden to show past
persecution or a well-founded fear of future persecution because he did not
present evidence to show that “the detention was anything other than an isolated
incident which did not rise to the level of persecution,” Cheng continued to attend
house churches in China for six years, and Cheng’s original church group still
meets and his brother attends those meetings. Because Cheng failed to meet the
lower burden of proof for asylum, the IJ found that he also failed to sustain the
higher burden of proof for withholding of removal. Finally, the IJ found that
Cheng failed to show that it was more likely than not that he would be tortured
if he returned to China, and the IJ denied his application for withholding of
removal pursuant to the CAT.
The BIA adopted and affirmed the IJ’s decision. The Board specified that
it agreed with the IJ that the one-time arrest and detention did not amount to
past persecution and that the evidence in the record did not give rise to a well-
founded fear of future persecution. The Board also specified that the fact that
Cheng stayed in China for six years following his arrest and detention and
5
No. 07-60464
attended underground churches over that time undermined Cheng’s claim of a
well-founded fear of future persecution.
Cheng appeals the BIA’s decision. This court has jurisdiction to review a
final order of removal pursuant to 8 U.S.C. § 1252.
II
Because the BIA adopted and affirmed the IJ’s decision, we review both the
IJ’s and BIA’s decisions.2 We review factual findings for substantial evidence and
questions of law de novo,3 “defer[ing] to the BIA’s interpretation of immigration
regulations if the interpretation is reasonable.” 4 The conclusion that an applicant
is not eligible for asylum, withholding of removal, or relief under the CAT is a
factual conclusion,5 and those “findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.”6
2
See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997) (“We have authority to review
only an order of the BIA, not the IJ, unless the IJ’s decision has some impact on the BIA’s
decision. Here, the BIA affirmed the IJ’s decision ‘based upon and for the reasons set forth in
that decision’—in essence, the BIA adopted the IJ’s decision. Thus, we must review the IJ’s
decision.” (citations omitted)).
3
Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007).
4
Bolvito v. Mukasey, 527 F.3d 428, 435 (5th Cir. 2008).
5
See Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006) (“We apply [the substantial
evidence test] in reviewing an IJ’s factual conclusion that an applicant is not eligible for
asylum, withholding of removal, and relief under the Convention Against Torture.” (citations
omitted)).
6
Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).
6
No. 07-60464
III
To be eligible for asylum, an applicant has the burden of proof to establish
that he is a “refugee.” 7 A person is a refugee if he has suffered past persecution
or has a well-founded fear of future persecution.8 An applicant can establish past
persecution by showing that he “has suffered persecution in the past in [his]
country of nationality . . . on account of race, religion, nationality, membership
in a particular social group, or political opinion, and is unable or unwilling to
return to, or avail himself . . . of the protection of, that country owing to such
persecution.”9 Cheng claims that he has suffered past persecution and has a well-
founded fear of future persecution in China on account of his Christian beliefs.
This court has defined “persecution” as:
The infliction or suffering of harm, under government sanction, upon
persons who differ in a way regarded as offensive (e.g., race, religion,
political opinion, etc.), in a manner condemned by civilized
governments. The harm or suffering need not be physical, but may
take other forms, such as the deliberate imposition of severe
economic disadvantage, or the deprivation of liberty, food, housing,
employment, or other essentials of life.10
However, persecution “does not encompass all treatment that our society regards
as unfair, unjust or even unlawful or unconstitutional.”11
7
8 C.F.R. § 1208.13(a).
8
Id. § 1208.13(b).
9
Id. § 1208.13(b)(1).
10
Chen, 470 F.3d at 1135 (quoting Abdel-Masieh v. INS, 73 F.3d 579, 583 (5th Cir.
1996)).
11
Tesfamichael v. Gonzales, 469 F.3d 109, 114 (5th Cir. 2006) (quoting Majd v.
Gonzales, 446 F.3d 590, 595 (5th Cir. 2006)).
7
No. 07-60464
The IJ found that Cheng failed to establish past persecution or a well-
founded fear of future persecution because his detainment was an “isolated
incident which did not rise to the level of persecution.” The IJ also noted that
Cheng’s original house church continued to meet and his brother continued to
attend those meetings. The IJ concluded that “[t]here is no indication that he is
in danger.” The BIA, in adopting and affirming the IJ’s opinion, noted the fact
that Cheng stayed in China for six years following his detention and attended
underground churches over that time undermined Cheng’s claim of a well-
founded fear of future persecution.
The IJ’s conclusion that Cheng did not establish past persecution is
supported by substantial evidence. Although Cheng was detained and suffered
some physical injury during his detention, the IJ concluded that this was an
isolated incident. We cannot say that the evidence compels a contrary
conclusion.12
Cheng also claims that he established a well-founded fear of future
persecution. Proof of a well-founded fear of future persecution requires a
subjective fear of persecution that is objectively reasonable.13 Because the IJ
found Cheng credible, Cheng’s possession of a subjective fear is not at issue.14 To
12
See id. at 117 (holding that an arrest and one-month detention and two brief searches
“fail[ed] to rise to the level of physical persecution”).
13
Chen, 470 F.3d at 1135; see also Tesfamichael, 469 F.3d at 113 (“The alternative
asylum ground, a well-founded fear of persecution, results when a reasonable person in the
same circumstances would fear persecution if deported.”).
14
See Zhao v. Gonzales, 404 F.3d 295, 307 (5th Cir. 2005) (“The IJ explicitly credited
Zhao’s testimony, so Zhao’s possession of a subjective fear is not at issue.”).
8
No. 07-60464
establish the objective reasonableness of a well-founded fear of persecution, the
applicant must show:
(1) he possesses a belief or characteristic a persecutor seeks to
overcome by means of punishment of some sort; (2) the persecutor is
already aware, or could become aware, that the alien possesses this
belief or characteristic; (3) the persecutor has the capability of
punishing the alien; and, (4) the persecutor has the inclination to
punish the alien.15
This court has also held that an applicant can show the objective reasonableness
of his fear of persecution by establishing a “pattern or practice” in the home
country of persecution of a group of persons similarly situated on one of the
protected grounds.16
First, we have previously held that at least one of the materials very
similar to those on which Cheng relied—the 2002 International Religious
Freedom Report 17 —does not compel a finding of a pattern or practice of
persecution of unregistered or underground churches in China.18 While Cheng
submitted other background information that could lead a reasonable fact finder
to conclude that there is a pattern or practice of persecution of house-church
members in China,19 those documents also contain information from which a
15
Chen, 470 F.3d at 1135-36 (quoting Zhao, 404 F.3d at 307).
16
Zhao, 404 F.3d at 307 (quoting 8 C.F.R. § 208.13(b)(2)(iii)(A)-(B)).
17
B UREAU OF DEM OCRACY , HUM AN RIGHTS , AND LABOR , U.S. DEP ’T OF STATE ,
INTERNATIONAL RELIGIOUS FREEDOM REPORT 2002, CHINA (INCLUDES HONG KONG AND MACAU )
(2002) [hereinafter 2002 RELIGIOUS FREEDOM REPORT ].
18
See Chen, 470 F.3d at 1137-38 (“[W]e conclude that the 2003 Religious Freedom
Report does not compel a finding of persecution to a reasonable degree.”).
19
See, e.g., BUREAU OF DEM OCRACY , HUM AN RIGHTS AND LABOR , U.S. DEP ’T OF STATE ,
CHINA : PROFILE OF ASYLUM CLAIMS AND COUNTRY CONDITIONS 5 (1998) [hereinafter ASYLUM
9
No. 07-60464
reasonable fact finder could conclude there is not a pattern or practice of
persecution of unregistered or underground churches.20 Thus, the record does not
compel the conclusion that there is a pattern or practice of persecution.
Therefore, Cheng’s well-founded fear of future persecution must rest on the claim
that he will be “singled out for persecution.”21
Cheng provided testimony regarding his original detention and a letter
from his mother stating that several of Cheng’s friends had been arrested and
that the police frequent Cheng’s family’s home and have asked questions,
searched the home, and threatened Cheng’s father with imprisonment. The IJ
found Cheng credible and “[did] not question that [he] was detained and
mistreated” but noted that Cheng remained in China practicing Christianity for
six years before departing for the United States and that his brother still
CLAIMS AND COUNTRY CONDITIONS ] (“[P]olice closed . . . hundreds of Protestant ‘house church’
groups. Leaders of these groups were targets of harassment, have been detained for lengthy
investigations, and in some cases churches—or church property—were destroyed.”); 2002
RELIGIOUS FREEDOM REPORT , supra note 17 (“During the period covered by this report, the
Government’s respect for freedom of religion and freedom of conscience remained poor,
especially for many unregistered religious groups and spiritual movements . . . . The
Government continued its crackdown on unregistered churches, temples, and mosques.”).
20
See, e.g., 2002 RELIGIOUS FREEDOM REPORT , supra note 17 (“[Sources at] both
officially sanctioned and underground places of worship all report that the numbers of
believers in the country continued to grow.”); id. (“Many house churches . . . were tolerated by
the authorities as long as they remained small and unobtrusive.”); BUREAU OF DEM O CRACY ,
HUM AN RIGHTS , AND LABOR , U.S. DEP ’T OF STATE , COUNTRY REPORTS ON HUM AN RIGHTS
PRACTICES 2001, CHINA (INCLUDES HONG KONG AND MACAU ) (2002) (“In other regions,
registered and unregistered churches were treated similarly by the authorities and reported
little or no day-to-day interference in their activities.”); ASYLUM CLAIM S AN D COUNTRY
CONDITIONS , supra note 19, at 5 (“[T]he Government generally permits small groups (10 to 20
persons) of believers to gather and worship privately in their homes . . . .”).
21
Zhao, 404 F.3d at 307.
10
No. 07-60464
attended meetings of the original house church. The IJ concluded that “[t]here
is no indication that he is in danger.”
We cannot say, based on this record, “that the evidence is so compelling
that no reasonable factfinder could reach [the IJ’s] conclusion.” 22 For the same
reasons, we will not disturb the IJ’s conclusion that Cheng failed to establish
eligibility for withholding of removal. Nor will we disturb the IJ’s and the BIA’s
determinations regarding Cheng’s claim for protection under the CAT. Cheng
failed to establish that it was more likely than not that he would be tortured if
removed to China.
IV
Finally, Cheng argues that the IJ erred in requiring corroborative evidence.
We do not agree that the IJ’s decision is based, in whole or in any material part,
on the failure to provide such evidence.
The IJ’s decision does discuss the lack of certain corroborating evidence.23
However, the IJ’s decision credited all of Cheng’s testimony regarding the
subjects the IJ found to lack corroboration. The decision accepted as true all
22
Chen, 470 F.3d at 1134; see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative
findings of fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary . . . .”).
23
The decision states:
Corroboration. The respondent submitted several background and condition
reports regarding China’s policy towards religion. However, he failed to submit
the documents which should be reasonably available to him. He has no
supporting documentation of his arrest, and, he does not even have a letter from
any of his colleagues who were arrested with him in September 1995, verifying
the facts of his arrest. Further, the respondent has been unable to obtain a
medical report verifying his injuries that occurred as a result of his time in
prison. This evidence is the type which is reasonably attainable by his friends
and family in China with whom he still has contact. [citation omitted]
11
No. 07-60464
Cheng said regarding his arrest and injuries while in prison. The decision states,
“The Court does not question that the respondent was detained and mistreated,
but there is no evidence to suggest that the detention was anything other than
an isolated incident which did not rise to the level of persecution.” The decision
then discusses other evidence that supports the IJ’s conclusion that Cheng had
not established past persecution and did not have a well-founded fear of future
persecution. Any lack of corroborative evidence did not affect the outcome in the
proceedings before the IJ.
* * *
The petition for review is DENIED.
12