Zhi Wei Pang v. Holder , 665 F.3d 1226 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
January 6, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ZHI WEI PANG,
a/k/a Zhi Wei Pan,
Petitioner - Appellant,
v. No. 10-9570
ERIC H. HOLDER, JR.,
U.S. Attorney General,
Respondent - Appellee.
APPEAL FROM THE BOARD OF IMMIGRATION APPEALS
Rachel Gore (Theodore N. Cox with on the brief), Law Offices of Theodore Cox,
New York, NY, for Petitioner.
Russell J.E. Verby (Tony West and Shelley R. Goad with on the brief), U.S.
Department of Justice, Office of Immigration Litigation, Washington, DC, for
Respondent.
Before KELLY, SILER, * and MATHESON, Circuit Judges.
SILER, Circuit Judge.
Zhi Wei Pang, a/k/a Zhi Wei Pan, illegally entered the United States in 1993
from his native country of the People’s Republic of China. Just months after his
*
The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for
the Sixth Circuit, sitting by designation.
arrival he applied for asylum, withholding of removal under the Immigration and
Nationality Act and relief under the Convention Against Torture (CAT). He claims
he suffered economic and emotional persecution due to his resistance to Chinese
population control policies. But because the economic penalties imposed on Pang
did not rise to the level of past persecution, we affirm the decision of the Board of
Immigration Appeals (BIA) and deny Pang’s petition for review.
I.
Pang was a rice farmer in China and worked on approximately one acre of land
that the government assigned to him. He raised 400 kilograms of rice per year but
was forced to give 150 kilograms of his harvest to the government. The remaining
rice was either sold or consumed by Pang’s family.
Pang married his wife, also a native and citizen of China, in 1988. That year
the couple gave birth to their first child, a daughter. Soon after her birth, Chinese
family planning authorities forced Pang’s wife to have an intrauterine device inserted
to prevent additional pregnancies. Subsequently, Pang and his wife visited a private
physician to remove the device.
In 1989 Pang’s wife became pregnant again. When Chinese officials
discovered the pregnancy they ordered her to have an abortion. But instead of
aborting the child, Pang’s wife hid with his brother for the duration of her pregnancy.
Pang’s son was born in July 1990. After Chinese officials learned of the birth, they
forced Pang’s wife to undergo a sterilization procedure in August 1990.
2
Subsequently, Pang’s wife became pregnant again but the pregnancy was ectopic.
She underwent another procedure to terminate the pregnancy and correct the botched
sterilization.
The Chinese government fined Pang 3,000 renminbi (RMB) for violating birth
control policies. Pang stated that this amount equaled five years of his family’s
income. By November 1991, approximately one year later, Pang had raised enough
money from friends and relatives to pay 1,500 RMB. The Chinese government
officially recognized his second child after the payment. But in January 1993,
government officials confiscated his home entertainment equipment when Pang was
unable to finish paying the fine.
In February 1993, over two years after his wife was sterilized and over a year
after he paid half of his fine, Pang fled China for the United States. He currently
owns a restaurant in Colorado and annually sends $2,000 to $3,000 to his family.
Pang’s family continues to live and farm on their government-assigned land.
When Pang entered the United States without inspection in 1993 the former
INS commenced deportation proceedings under former INA § 241(a)(1)(B), 8 U.S.C.
§ 1251(a)(1)(B). In August 1993, Pang requested asylum relief. At a hearing in
1996, the immigration judge (IJ) denied his application for asylum relief based on
an adverse credibility finding and granted his application for voluntary departure.
Pang appealed to the BIA, which affirmed the IJ’s decision without opinion.
Pang appealed the BIA’s decision to the United States Court of Appeals for
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the Second Circuit, which granted Pang’s petition for review. Pang v. B.C.I.S., 448
F.3d 102 (2d Cir. 2006). It determined that the record failed to support the IJ’s
adverse credibility finding, which was based on “impermissible conjecture” and “the
IJ’s failure to develop the record.” Id. at 109. It remanded the case to the BIA, and
the BIA, in turn, remanded the case to the IJ.
On remand the venue changed to the Tenth Circuit. In 2008, the IJ denied
Pang’s applications for relief and granted a voluntary departure. Pang appealed to
the BIA, but the BIA dismissed the appeal because he failed to demonstrate “past
persecution on account of a statutorily enumerated ground.” The BIA assumed
arguendo that Pang’s conduct constituted resistance, but found that the economic
penalties imposed did not rise to the level of “past persecution.” It noted that “it is
not clear from the record how his standard of living may have changed after he paid
the fine.” Specifically, Pang’s family remains on their land in China, where his wife
continues to live and farm. Additionally, Pang “has not demonstrated an objectively
reasonable fear of future persecution,” because his debt to the Chinese government
has been fulfilled. The BIA also denied Pang’s request for withholding of removal
and protection under the CAT.
II.
A.
To be eligible for asylum, an applicant must be a “refugee” within the meaning
of INA § 101(a)(42), 8 U.S.C. § 1101(a)(42). A “refugee” is a person unable or
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unwilling to return to his country “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The applicant bears
the burden of proof of establishing eligibility for asylum. 8 C.F.R. § 208.13;
Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir. 2001).
In 1996, Congress amended the statutory definition of “refugee” to include
persons subject to, or resisting, coercive family planning policies. See IIRIRA §
601(a)(1). In pertinent part, the definition of refugee was amended as follows:
[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 political opinion,
and a person who has a well founded fear that he . . . will be . . .
subject to persecution for such . . . resistance shall be deemed to
have a well founded fear of persecution on account of political
opinion.
INA § 101(a)(42)(B), 8 U.S.C. § 1101(a)(42)(B) (2006) (emphasis added).
A spouse cannot rely upon “the sole fact of their spouse’s persecution
automatically to qualify for political asylum under the statute’s coercive population
control resistance provisions.” Matter of J-S-, 24 I. & N. Dec. 520, 534-35 (BIA
2008). Thus, an individual who has not physically undergone a forced abortion or
sterilization procedure is not per se eligible for refugee status. Id. Instead, the
individual must demonstrate that (1) he “‘resisted’ China’s coercive population
control program,” (2) he “suffered or has a well-founded fear that he will suffer
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‘persecution’ by the Chinese Government,” and (3) “such persecution was inflicted.
. . ‘on account of’ his resistance. . . .” Id. at 542. A showing of past persecution
gives rise to a rebuttable presumption of a well-founded fear of future persecution.
8 C.F.R. § 1208.13(b)(1).
B.
Because the BIA assumed that Pang’s conduct in China constituted resistance,
our analysis focuses on whether he suffered past persecution or has a well-founded
fear of future persecution. See J-S-, 241 I. & N. Dec. at 542.
“In this circuit, the ultimate determination whether an alien has demonstrated
persecution is a question of fact, even if the underlying factual circumstances are not
in dispute and the only issue is whether those circumstances qualify as persecution.”
Vicente-Elias v. Mukasey, 532 F.3d 1086, 1091 (10th Cir. 2008). We review the
agency’s factual determination that Pang did not suffer persecution under the
substantial evidence standard. Id. The BIA’s determination must be upheld “unless
the record demonstrates that any reasonable adjudicator would be compelled to
conclude to the contrary.” Sarr v. Gonzales, 474 F.3d 783, 788-89 (10th Cir. 2007)
(internal quotation marks omitted).
III.
A.
Pang argues that he suffered economic and emotional persecution as a result
of his resistance to Chinese population control policies.
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To determine whether a petitioner has demonstrated persecution, the BIA must
examine harmful incidents in the “aggregate.” In re O-Z- & I-Z-, 22 I. & N. Dec. 23,
26 (BIA 1998). “Persecution is the infliction of suffering or harm upon those who
differ. . . in a way regarded as offensive and requires more than just restrictions or
threats to life and liberty.” Chaib v. Ashcroft, 397 F.3d 1273, 1277 (10th Cir. 2005)
(internal quotation marks omitted). Mere “denigration, harassment, and threats” are
insufficient. Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005).
Economic hardships may qualify as persecution in two ways. First, economic
persecution may exist when the government imposes penalties so severe that it
jeopardizes the petitioner’s life or freedom. Vicente-Elias, 532 F.3d at 1088-90 &
n.4. Second, economic persecution may exist when the government deliberately
places the petitioner at a severe economic disadvantage even though he is spared the
bare essentials of life. Id. at 1088-89. Government sanctions that may amount to
persecution include a “particularly onerous fine, a large-scale confiscation of
property, or a sweeping limitation of opportunities to continue to work in an
established profession or business.” In re T-Z-, 24 I. & N. Dec. 163, 174 (BIA
2007); see Vicente-Elias, 532 F.3d at 1089. 1 The harm must be “of a deliberate and
severe nature . . . that is condemned by civilized governments.” T-Z-, 241 I. & N.
1
In Vicente-Elias, we “assume[d], without deciding, that [the standard from T-
Z-] is valid,” and did not decide what level of deference, “if any,” it is due as an
agency decision. 532 F. 3d at 1089 n.3 (quoting Albertson’s, Inc. v. Kirkingburg,
527 U.S. 555, 563 n.10 (1999)).
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Dec. at 173.
In Li v. Attorney General of the United States, 400 F.3d 157 (3d Cir. 2005),
the Third Circuit determined that the petitioner met the “rigorous standard” for
showing economic persecution. Id. at 159. In Li, the petitioner and his wife were
punished by Chinese population control officials for having four children. Id. The
couple was fined the equivalent of twenty months’ salary; lost their government jobs
and accompanying health insurance, food rations, and school payment; were
effectively blacklisted from other government employment; and had their furniture
and major household appliances confiscated. Id. The court held that these
restrictions constituted economic persecution that threatened the family’s freedom
and possibly their lives. Id. at 168-69.
The Third Circuit similarly found that the Chinese government’s cumulative
economic and non-economic sanctions constituted a “pattern of mistreatment”
amounting to persecution in Cheng v. Attorney General, 623 F.3d 175, 191 (3d Cir.
2010). This mistreatment included the forced insertion of an intrauterine device
under circumstances that caused the petitioner extreme pain, government threats to
take the petitioner’s daughter and detain her boyfriend, and the imposition of fines
for having an unauthorized child and for missing gynecological appointments. Id.
at 195. The government also confiscated her family farm and truck, and forbade the
entire family from working on the farm. Id. at 194. The court held that the seizure
of such significant property, which “served as the exclusive source of the family’s
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livelihood,” constituted an economic sanction so severe that it jeopardized the
family’s freedom and possibly their lives. Id. at 195.
Pang relies on Li and argues that he suffered both non-economic and economic
harm rising to the level of past persecution, which entitles him to a presumption of
a well-founded fear of persecution. Specifically, he helped hide his wife from family
planning officials during her second pregnancy and suffered the emotional stress of
her forced sterilization and resulting ectopic pregnancy. He also maintains that
Chinese officials fined him the equivalent of five years’ wages and confiscated his
entertainment equipment.
In contrast to Li and Cheng, however, the penalties the Chinese government
imposed on Pang did not jeopardize his life or freedom. There was no large-scale
confiscation of property due to his political opinion. In fact, his family appears to
have maintained their standard of living as rice farmers because they continue to
farm their state-owned plot of land in China. Cf. Vicente-Elias, 532 F.3d at 1091-92(finding no persecution where “[p]aying work has been available at times”); T-Z-,
24 I. & N. Dec. at 174 (“[A] large-scale confiscation of property, or a sweeping
limitation of opportunities to continue to work in an established profession or
business may amount to persecution[.]”).
Pang also looks to the Ninth Circuit to establish that he has suffered
persecution. In Jiang v. Holder, 611 F.3d 1086, 1095 (9th Cir. 2010), the court
found that the Chinese government’s cumulative economic and non-economic
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sanctions constituted persecution. The petitioner was expelled from school because
of a romantic relationship with his girlfriend, denied a marriage license because he
and his girlfriend were underage, arrested for cohabitating with his girlfriend,
released from prison after he paid 5,000 RMB and his girlfriend’s pregnancy was
forcibly aborted, and went into hiding when Chinese officials tried to arrest him at
his unauthorized wedding. Id. at 1089-90. The court noted that the fine was not
enough to establish persecution but that “the totality of the circumstances” caused
the court to find that the petitioner suffered persecution. Id. at 1095-96 & n.2.
There are some similarities between Pang and the petitioner in Jiang. Like
Pang’s wife, the mother of the petitioner’s child in Jiang was assaulted by Chinese
officials and the petitioner was fined. But the petitioner in Jiang was fined 2,000
RMB more than Pang and, unlike the petitioner in Jiang, Pang has never been
detained by Chinese authorities and forced into hiding to avoid arrest. Pang was
allowed to continue to farm on government land despite his resistence to the
government’s policies. Also, the petitioner in Jiang, a minor and an expelled
student, did not claim he suffered economic hardship even though he was forced to
pay 2,000 RMB more than Pang. Id. at 1096 n.2. Compared to the petitioner in
Jiang, Pang’s life or freedom was not in jeopardy and he did not suffer a severe
economic disadvantage because of the fine.
The mere fact that an economic sanction was imposed on Pang is insufficient
to establish persecution. Economic hardship and circumstances that rise to the level
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of those in Li and Cheng are sufficient to establish persecution.
Pang undoubtedly suffered emotional distress because of his wife’s
sterilization, her ectopic pregnancy and the fine. The evidence, however, allowed
the BIA to determine that the fine was not so onerous as to amount to past
persecution. Cf. Li, 400 F.3d at 168; see T-Z-, 24 I. & N. Dec. at 172 (“[P]ersecution
is an extreme concept that does not include every sort of treatment our society
regards as offensive.”) (internal quotation marks omitted). The sanctions imposed
in Li and Cheng were more draconian than the situation presented here, as Pang was
able to maintain his land and continue farming. Although the BIA could have
reached a different conclusion, the evidence is not so egregious that “any reasonable
adjudicator would be compelled to conclude” that the Chinese government’s actions
constituted a threat to Pang’s freedom or life, or constituted a severe economic
disadvantage rising to the statutory level of persecution. Sarr, 474 F.3d at 788-89.
B.
It is more easily determined that Pang cannot show a well-founded fear of
future persecution. See 8 C.F.R. § 1208.13(b). He was not harassed, other than
when his home entertainment equipment was taken, or harmed in China after he paid
half of the fine. His debt to the Chinese government is now fulfilled. His second
child is listed in the family registry. And most significantly, his wife and children
remain in China unharmed and able to continue farming. Pang has not shown that
family planning officials have a continued interest in him such that there is a
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reasonable possibility that he would suffer persecution upon his return to China.
Accordingly, while Pang’s situation is sympathetic, he has not established eligibility
for asylum.
IV.
The showing required for withholding of removal is more stringent that the
showing required for asylum. To be eligible for withholding of removal, an
applicant must demonstrate that there is a “clear probability of persecution” because
of his race, religion, nationality, membership in a particular social group, or political
opinion. Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003) (superseded
on other grounds by statute (82 U.S.C. § 1252(a)(2)(D))); 8 C.F.R. 208.16.
To be eligible for relief under the CAT, an individual must “establish that it
is more likely than not that he or she would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 208.16(c)(2) (2000).
Because Pang fails to satisfy the lower burden of proof required for asylum,
he also fails to satisfy the higher standard of eligibility for withholding of removal.
See Woldemeskel, 257 F.3d at 1193. Similarly, he has not established that he more
likely than not will suffer torture at the behest of the Chinese government upon his
return to China and is therefore ineligible for relief under the CAT. See 8 C.F.R. §§
1208.16(c), 1208.18(a). V.
For the foregoing reasons, we DENY Pang’s petition for review of the BIA
order.
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10-9570, Pang v. Holder
MATHESON, J., concurring.
Mr. Pang presented a strong and sympathetic claim for refugee status based
on past persecution. He resisted China’s coercive population control program,
experienced his spouse’s forced sterilization, and endured significant government
economic sanctions. The Board of Immigration Appeals (BIA) found Mr. Pang to be
credible but, focusing largely on Mr. Pang’s economic harm, rejected the past
persecution claim.
The standard of review for this appeal permits reversal only if “any reasonable
adjudicator would be compelled to conclude to the contrary.” Sidabutar v. Gonzales,
503 F.3d 1116, 1122 (10th Cir. 2007) (quotations omitted). In my view, the evidence
supports that Mr. Pang suffered past persecution. Whether the evidence compels this
finding is a harder question. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)
(“To reverse the BIA finding we must find that the evidence not only supports that
conclusion, but compels it . . . .”) (emphasis in original).
Constrained by the highly deferential standard of review, and noting the
substantial evidence on lack of a well-founded fear of future persecution, I concur
in the result.