Jian Hua Zheng v. U.S. Attorney General , 357 F. App'x 268 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12050 ELEVENTH CIRCUIT
DECEMBER 18, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A097-957-410
JIAN HUA ZHENG,
a.k.a. Jianhua Zheng,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 18, 2009)
Before CARNES, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Jian Hua Zheng, a native and citizen of China, petitions for review of the
Bureau of Immigration Appeals’ (“BIA’s”) decision affirming the Immigration
Judge’s (“IJ’s”) order denying his application for asylum, withholding of removal,
and relief under the Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (“CAT”). For the reasons set forth below, we
deny Zheng’s petition for review.
I.
In his application for asylum, withholding of removal, and CAT relief,
Zheng argued that if he returned to China, he could be detained, fined, abused,
tortured, or forcibly sterilized, because he violated China’s family planning policy
and left the country illegally.
At his asylum hearing, Zheng testified that his wife, Mei Yu, gave birth to
their son in 1997 in Liang Jian City Hospital. At the end of January 1998, village
officials came to his home and told Mei Yu to have an Intrauterine Device (“IUD”)
inserted within one week or Zheng and Mei Yu would suffer consequences.
Village officials returned in February, took Mei Yu to the local family planning
office, and forced her to have an IUD inserted. Mei Yu was instructed to return
every four months for an IUD check up. In July 2004, Zheng and Mei Yu
requested permission from the Village Family Planning Office to have additional
children. The officials denied the request and stated that, if Mei Yu became
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pregnant again, they would force her to have an abortion and sterilize either Zheng
or Mei Yu.
In September 2004, Mei Yu had her IUD removed by a private doctor and
never reported for another IUD check up. After missing two IUD check ups, a
village official informed Zheng’s mother that, if officials discovered that Mei Yu
was pregnant, they would abort the child. In June 2005, a private doctor confirmed
that Mei Yu was pregnant. Zheng and Mei Yu decided to leave China and give
birth to their child in America. Zheng left China when Mei Yu was “[a] little bit
over two months” pregnant. Mei Yu subsequently left China, but suffered a
miscarriage in August 2005, while passing through Holland. Four days later, Mei
Yu was taken to Belgium, where she saw a doctor. Zheng testified that his wife had
not sought political asylum in Holland or Belgium, and that she was currently in
Belgium waiting for a smuggler to bring her to America. Zheng acknowledged
that he had been in France for a two or three hour layover before coming to the
United States, but he did not seek asylum in France because he wanted to come to
America.
In support of his asylum claim, Zheng submitted letters from family
members setting forth the same facts about which he testified. He also submitted a
copy of his son’s birth certificate, which did not include Zheng’s identification
number or the full identification number for Mei Yu.
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The IJ “accorded minimal weight to the family letters and letters that had
been submitted by this respondent’s family,” because of “the self-serving nature of
all of this material.” The IJ also noted that the United States State Department’s
“Profile of Asylum Claims and Country Conditions” indicated that documents
from Fujian Province were subject to widespread fabrication and fraud. The IJ
noted that Zheng’s son’s birth certificate did not include Zheng’s identity card
number and did not include the full identity number of Zheng’s wife. He pointed
out that Zheng offered no documentary evidence in support of his claim that his
wife had the IUD removed by a private physician or had suffered a miscarriage.
The IJ also found that Zheng “ha[d] not shown anything other than a desire to
migrate to the United States,” because he failed to seek asylum in France. The IJ
determined that Zheng’s testimony was not sufficiently credible to meet his burden
of proof on the asylum claim. The IJ also denied Zheng’s claims for withholding
of removal and CAT relief.
Zheng appealed to the BIA, arguing that his testimony was credible, that he
had described in detail his past persecution and fear of future persecution, and that
the IJ improperly applied the Real ID Act.
The BIA found that Zheng’s testimony regarding his alleged persecution in
China was insufficient to meet his burden of proof for asylum, because his
“testimony was weak and his corroboration insufficient.” Based on Zheng’s
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testimony that his wife had not sought asylum in Belgium and that Zheng did not
seek asylum in France, the BIA determined that the IJ reasonably found that Zheng
wanted to come to the United States for economic reasons. It pointed out that
Zheng failed to explain why his son’s birth certificate did not include Zheng’s
identification number or a complete identification number for his wife. The BIA
also found that the insertion of an IUD did not constitute past persecution to Zheng
and that Zheng was not persecuted on account of the IUD removal. The BIA
explained that, because Zheng failed to meet his burden of proof with respect to his
asylum claim, he also necessarily failed to meet the burden of proof required to
establish eligibility for withholding of removal. Finally, the BIA determined that
Zheng was not eligible for relief under the CAT, because he failed to show that he,
more likely than not, would be tortured upon his return to China.
II.
We review only the BIA’s decision, except to the extent that the BIA
expressly adopts the IJ’s opinion or reasoning. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). Here, the BIA did not expressly adopt the IJ’s order,
so we review the BIA’s order. When reviewing an order of the BIA, we review
legal issues de novo. Hernandez v. U.S. Att’y Gen., 513 F.3d 1336, 1339 (11th Cir.
2008). The BIA’s factual findings are reviewed under the substantial evidence test.
Al Najjar, 257 F.3d at 1283. Under this test, we must affirm the BIA’s decision if
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it is “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Id. at 1284.
Asylum and Withholding of Removal
The BIA must make an explicit and clean determination of the credibility of
an asylum applicant’s testimony. Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201
(11th Cir. 2005). Credible testimony may be sufficient to support an applicant’s
asylum claim, even if the applicant did not present any corroborating evidence. 8
C.F.R. § 208.13(a). “The weaker an applicant’s testimony, however, the greater
the need for corroborative evidence.” Yang, 418 F.3d at 1201.
An alien may establish eligibility for asylum if he shows that he has suffered
either “past persecution” or has a “well-founded fear” of future persecution based
on his race, religion, nationality, membership in a particular social group, or
political opinion. 8 C.F.R. § 208.13(b); Chen v. U.S. Att’y Gen., 513 F.3d 1255,
1257 (11th Cir. 2008). “To establish asylum based on past persecution, the
applicant must prove (1) that []he was persecuted, and (2) that the persecution was
on account of a protected ground.” Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d
1223, 1232 (11th Cir. 2007); 8 C.F.R. § 208.16(b). A well-founded fear may be
established by showing (1) past persecution that creates a presumption of a “well-
founded fear” of future persecution, (2) a reasonable possibility of being singled
out for persecution that cannot be avoided by relocating within the subject country,
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or (3) a pattern or practice in the subject country of persecuting members of a
statutorily defined group of which she is a part. 8 C.F.R. § 208.13(b)(1), (2), (3)(i).
An alien is entitled to withholding of removal under the INA if he can show
“that his life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion.”
Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). This standard
is more stringent than the “well-founded fear” standard for asylum; thus, if an
applicant is unable to meet the “well-founded fear” standard, he necessarily is
unable to qualify for withholding of removal. Forgue v. U.S. Att’y Gen., 401 F.3d
1282, 1288 n.4 (11th Cir. 2005).
Congress has provided by statute that forced abortion, forced sterilization,
and other coercive population control measures are forms of political persecution:
For purposes of determinations under this chapter, 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 or she will be forced
to undergo such a procedure or subject to persecution for
such failure, refusal, or resistance shall be deemed to
have a well founded fear of persecution on account of
political opinion.
8 U.S.C. § 1101(a)(42). We have noted that “[t]here is very little case law
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analyzing the ‘other resistance’ clause in [§ 1101(a)(42)].” See Yang, 418 F.3d at
1203. In Yang, we held that Yang’s “claim that she was forced to undergo an
atrocious injection procedure to which she fought back by kicking and screaming”
could constitute “other resistance to a coercive population control program.” Id.
We distinguished Yang’s case from a case in which the petitioner had left the IUD
in place while residing in the United States and failed to allege “force, physical
abuse, or other equivalent circumstances,” noting that Yang twice removed her
IUD and alleged physical and verbal resistance to the IUD insertion. Id. at 1205
n.8.
We have also held that a husband is not automatically entitled to asylum
based solely on his wife’s forced abortion or sterilization. See Yu v. U.S. Att’y
Gen., 568 F.3d 1328, 1332 (11th Cir. 2006). Instead, the husband must show that
he personally was persecuted either by being forcibly sterilized or by resisting a
country’s coercive family planning policy. See id. at 1333. Alternatively, a
husband may show that he has a well-founded fear of being forced to undergo
involuntary sterilization or future persecution for resisting a coercive population
control measure. See id.
As an initial matter, although the BIA repeatedly characterized Zheng’s
testimony as weak, it did not expressly state that his testimony was incredible.
Because the BIA did not make an explicit adverse credibility determination, we
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accept Zheng’s testimony as true. See Yang, 418 F.3d at 1201; Meija v. U.S. Att’y
Gen., 498 F.3d 1253, 1255 n.2 (11th Cir. 2007) (noting that we will accept a
petitioner’s testimony as true if the BIA fails to make an adverse credibility
finding).
Even accepting Zheng’s testimony as true, the BIA’s determination that
Zheng did not suffer past persecution is supported by substantial evidence. Neither
Zheng nor Mei Yu were forcibly sterilized and Mei Yu was never forced to have an
abortion. Although Mei Yu was forced to have an IUD inserted against her will, it
is not clear that the IUD insertion, in the absence of the aggravating circumstances
present in Yang, constituted persecution. See Yang, 418 F.3d at 1203 (noting that
Yang physically resisted the “atrocious” IUD injection procedure). Moreover,
because a husband is not automatically entitled to asylum based on his wife’s
forced abortion or sterilization, it follows that Zheng is not automatically entitled
to asylum based solely on his wife’s forced IUD insertion. See Yu, 568 F.3d at
1332.
It also does not appear that Zheng personally was persecuted “for other
resistance to a coercive population control program.” See 8 U.S.C. § 1101(a)(42).
Although Zheng testified that Mei Yu had the IUD removed by a private doctor,
there is no evidence that Zheng was persecuted because of this. Zheng testified
that family planning officials visited his home and threatened to forcibly abort Mei
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Yu’s child if she was found to be pregnant. However, there is no evidence that
officials actively searched for Zheng while he was in hiding at his sister’s house.
Furthermore, because we have held that a husband is not automatically entitled to
asylum based on his wife’s forced abortion, it follows that a husband is not
automatically entitled to asylum based on threats to perform a forced abortion on
his wife. See Yu, 568 F.3d at 1332.
Zheng also testified that he feared future persecution if he returned to China
because he and his wife violated the family planning laws and left China illegally.
The documentary evidence in the record renders this fear objectively unreasonable.
The State Department’s “Profile of Asylum Claims and Country Conditions” states
that the Chinese government “accepts the repatriation of citizens who have entered
other countries or territories illegally,” that such individuals are rarely fined, and
that “U.S. officials in China have not confirmed any case of abuse of persons
returned to China from the U.S. for illegal entry.” Furthermore, Zheng and Mei Yu
have only one child and the evidence in the record establishes that, if forced
sterilizations are performed, they are performed only after the birth of an
out-of-plan child. Thus, Zheng does not appear to be in danger of being forcibly
sterilized if he is returned to China. Finally, Zheng failed to show that relocation
within China would be unreasonable, especially in light of documentary evidence
stating that enforcement of China’s family planning policy varies widely
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throughout the country and that relocation within China “is more of a possibility
than previously, especially for those with access to money.” 8 U.S.C.
§ 208.13(b)(2) (providing that “[a]n applicant does not have a well-founded fear of
persecution if the applicant could avoid persecution by relocating to another part of
the applicant’s country of nationality”).
Zheng’s arguments that the IJ erred in (1) discrediting letters submitted by
his family members, (2) requiring him to provide copies of his wife’s medical
records, and (3) discrediting of his son’s birth certificate, are unavailing. The facts
set forth in the letters from Zheng’s family members were also set forth in Zheng’s
testimony, which we consider to be truthful, because the BIA failed to make an
explicit adverse credibility determination. See Yang, 418 F.3d at 1201; Meija, 498
F.3d at 1255 n2. Similarly, we accept as true the fact that Mei Yu suffered a
miscarriage in Holland and that Zheng and Mei Yu had a son. However, as noted
above, Zheng has failed to establish, even in light of these facts, that he suffered
past persecution or had a well-founded fear of future persecution. Accordingly, we
deny Zheng’s petition for review of the BIA’s order denying asylum and
withholding of removal.
CAT Relief
The government argues that Zheng waived any challenge to the BIA’s denial
of his application for CAT relief.
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In his brief, Zheng mentions the CAT only once, stating that “an alien
seeking withholding of removal under the Convention Against Torture (“C.A.T.”)
has the burden of showing that he would more likely than not be tortured if
removed.” Because Zheng, who is represented by counsel, simply cited the
standard of proof for CAT claims rather than presenting any arguments in support
of his own claim for CAT relief, he has abandoned any argument pertaining to the
denial of his application for CAT relief. See Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1228 n.2 (11th Cir. 2005) (stating that, “[w]hen an appellant fails to
offer argument on an issue, that issue is abandoned”). Accordingly, we deny
Zheng’s petition for review.
DENIED.
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