Hong E. Jiang v. U.S. Attorney General , 293 F. App'x 737 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 17, 2008
No. 07-15527 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A79-297-952
HONG E. JIANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 17, 2008)
Before BIRCH, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Hong E. Jiang seeks review of the IJ’s and BIA’s decisions denying her
application for asylum, withholding of removal, and relief under the Convention
Against Torture (CAT). Jiang contends that the IJ erred by: (1) making an adverse
credibility determination against her with respect to her coercive family planning
policies claim without specific, cogent reasons; and (2) denying her relief with
respect to her claim of religious persecution.1
I.
Jiang first contends with respect to her claim of persecution based on
China’s allegedly coercive family planning policies that the IJ erred by making an
adverse credibility determination against her. We review the BIA’s decision,
except to the extent that it expressly adopts the opinion of the IJ. Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). “Insofar as the [BIA] adopts the
IJ’s reasoning, we will review the IJ’s decision as well.” Id. Here, the BIA
adopted much of the IJ’s reasoning but also issued its own opinion, so we will
review both the BIA’s and IJ’s decisions. See id.We review de novo the IJ’s and BIA’s legal determinations. See Yang v.
United States Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). We review the
IJ’s and BIA’s factual determinations under the substantial evidence test, and we
1
Jiang also includes one sentence in her brief laying out an alien’s burden of proof for a
CAT claim. However, she does not present any arguments challenging the IJ’s and BIA’s denial
of her CAT claim, so she has abandoned this issue. See Sepulveda v. United States Att’y Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (“When an appellant fails to offer argument on an
issue, that issue is abandoned.”).
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must affirm the IJ’s and BIA’s decisions if they are “supported by reasonable,
substantial and probative evidence on the record considered as a whole.” Antipova
v. United States Att’y Gen., 392 F.3d 1259, 1261 (11th Cir. 2004) (citation
omitted); Al Najjar, 257 F.3d at 1283–84. Under the substantial evidence test, the
record is reviewed in the light most favorable to the IJ’s and BIA’s decisions and
we draw all reasonable inferences in favor of those decisions. Id. “To reverse the
IJ’s [and BIA’s] fact findings, we must find that the record not only supports
reversal, but compels it.” Mendoza v. United States Att’y Gen., 327 F.3d 1283,
1287 (11th Cir. 2003) (considering withholding of removal claim). We review the
IJ’s and BIA’s credibility determinations under the substantial evidence test.
D-Muhumed v. United States Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004).
The IJ must make an explicit credibility determination, which will be viewed
as conclusive unless a reasonable factfinder would be compelled to conclude to the
contrary. Yang, 418 F.3d at 1201. If the IJ does not make a specific finding as to
credibility, the petitioner’s testimony is presumed to be credible. See Niftaliev v.
United States Att’y Gen., 504 F.3d 1211, 1216 (11th Cir. 2007).
“Once an adverse credibility finding is made, the burden is on the applicant
alien to show that the . . . credibility decision was not supported by specific, cogent
reasons or was not based on substantial evidence.” Forgue, 401 F.3d at 1287(internal quotation marks omitted). An adverse credibility determination alone
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may be the basis for denying an asylum application if the applicant produces no
evidence other than his testimony. Id. If the applicant produces additional
evidence it must be considered by the IJ, and the IJ may not rely solely on an
adverse credibility determination in denying relief. Id. Where, as in Jiang’s case, a
petition for asylum is filed before May 11, 2005,2 some circuits have required an
adverse credibility finding to go to the heart of the asylum claim. See, e.g., Gao v.
Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002); Gui v. Immigration & Naturalization
Serv., 280 F.3d 1217, 1225 (9th Cir. 2002). We, however, have not adopted that
test.
An alien who arrives in or is present in the United States may apply for
asylum. 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant
asylum if the alien meets the INA’s definition of a “refugee.” 8 U.S.C.
§ 1158(b)(1). A “refugee” is:
[A]ny person who is outside any country of such person’s nationality
or, in the case of a person having no nationality, is outside any
country in which such person last habitually resided, and who is
unable or unwilling to return to, and is unable or unwilling to avail
himself or herself of the protection of that country because of
persecution or a well-founded fear of persecution on account of race,
2
The REAL ID Act changed the credibility standard for applications made on or after
May 11, 2005, permitting credibility to be determined based on the totality of the circumstances
and all relevant factors, including the demeanor and candor of the applicant or witness and the
consistency of her testimony and written and oral statements, regardless of whether they go to
the heart of the claim. 8 U.S.C. § 1158(b)(1)(B)(iii) (as amended by the REAL ID Act
§ 101(a)(3)).
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religion, nationality, membership in a particular social group, or
political opinion.
Id. § 1101(a)(42)(A). The burden of proof is on the alien to establish that she is a
refugee by offering “credible, direct, and specific evidence in the record.” Forgue
v. United States Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005).
To establish asylum eligibility, the alien must demonstrate: (1) past
persecution on account of “race, religion, nationality, membership in a particular
social group, or political opinion;” or (2) a “well-founded fear” that one of these
statutorily listed factors will cause such future persecution. 8 C.F.R. §§ 208.13(a),
(b); Al Najjar, 257 F.3d at 1287. “Demonstrating such a connection requires the
alien to present specific, detailed facts showing a good reason to fear that he or she
will be singled out for persecution on account of” a statutory factor. Al Najjar, 257
F.3d at 1287 (citations omitted).
An applicant who establishes past persecution is presumed to have a well-
founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). If an applicant seeks
asylum based on a well-founded fear of persecution, she must establish a causal
connection between the statutory factor and the feared persecution and must
present specific, detailed facts showing a good reason to fear that she will be
singled out for persecution on account of the factor. Sepulveda v. United States
Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005). An applicant may establish a
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“well-founded fear” by demonstrating that her fear of future persecution is
“subjectively genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289;
see also 8 C.F.R. § 208.13(b)(2).
The Act specifically defines forced abortion, involuntary sterilization, and
coercive population control measures as political persecution. 8 U.S.C.
§ 1101(a)(42)(B). Specifically, it states:
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.
Id.In Yang, we determined that the petitioner, a Chinese citizen, failed to
establish past persecution based on undergoing a sterilization procedure or a well-
founded fear of persecution based on a fear of becoming sterilized because she
failed to show that any injection she received was a sterilization measure rather
than simply a birth-control measure. Yang, 418 F.3d at 1202. Although under
China’s family planning policies Yang was forced to pay a fine after her second
child was born, “a single fine is not akin to a sterilization procedure or forced
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abortion.” Id. at 1203. Nevertheless, we held that Yang’s verbal and physical
resistance to a forced injection and the insertion of two intrauterine devices against
her will, as well as her removal of the intrauterine devices in violation of Chinese
law, could be considered “other resistance to a coercive population control
program” under 8 U.S.C. § 1101(a)(42)(B). Id. at 1205. Because the BIA had not
decided whether Yang’s conduct fit within the “otherwise resist” clause, we
remanded to the BIA for such a determination. Id.
Conversely, in Huang v. United States Att’y Gen., 429 F.3d 1002 (11th Cir.
2005), the applicant, another Chinese citizen, had never been pregnant and
accordingly had not been forced to undergo an abortion or involuntary sterilization,
but she was forced to undergo an initial state-ordered gynecological exam, refused
to undergo a second such exam, and was detained for twenty days because of this
refusal. Id. at 1010. The BIA had affirmed the IJ’s denial of her application for
asylum and withholding of removal and we denied the petition, holding that she
did not meet her burden of proof to show “other resistance to a coercive population
control program” under 8 U.S.C. § 1101(a)(42)(B). Huang v. United States Att’y
Gen., 429 F.3d 1002, 1010 (11th Cir. 2005).
Here, the IJ’s adverse credibility determination with respect to Jiang’s claim
of persecution based on China’s allegedly coercive family planning policies was
supported by substantial evidence. See Forgue, 401 F.3d at 1287. The IJ and BIA
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correctly noted the inconsistencies between Jiang’s testimony, her application, and
her husband’s application regarding the number of children they had, the children’s
birthdays, and whether Jiang was forced to pay fines known as social
compensation fees. The document Jiang alleges is a certificate documenting a
forced abortion does not undermine the IJ’s adverse credibility determination
because the State Department’s 2004 Country Profile of China, which was
admitted into the record, states that many certificates are not authentic, and those
that are authentic are issued after voluntary abortions to allow the woman to get
time off work. See Reyes-Sanchez v. United States Att’ys Gen., 369 F.3d 1239,
1243 (11th Cir. 2004) (stating that “[t]he Board was entitled to rely heavily” on
State Department reports). Finally, the IJ accurately noted the inconsistencies
between Jiang’s testimony and her application with respect to whether an
ultrasound and urinalysis were performed before the alleged forced abortion.
Because of the adverse credibility determination against Jiang, her testimony
cannot be used to find that she experienced past persecution or had a well-founded
fear of future persecution. See Forgue, 401 F.3d at 1287. She also submitted
evidence, however, which the IJ and BIA were required to independently consider.
See id. They did so, specifically examining the exhibits in the record including
Jiang’s husband’s application, the alleged abortion certificate, and the State
Department’s Country Profile. The additional evidence did not show that Jiang
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had experienced past persecution based on China’s allegedly coercive family
planning policies or had a well-founded fear of future persecution under those
policies and, accordingly, the IJ’s and BIA’s denials of Jiang’s asylum claim based
on China’s allegedly coercive family planning policies were supported by
substantial evidence. See Mendoza v. United States Att’y Gen., 327 F.3d at 1287.
Because Jiang failed to establish an entitlement to asylum on her coercive family
planning policies claim, she also failed to meet the higher threshold for
withholding of removal relief. See Al Najjar, 257 F.3d at 1293.
II.
Jiang next contends that with respect to her claim of religious prosecution
based on being an unregistered Catholic, the IJ’s and BIA’s denial of relief is not
supported by substantial evidence. When asserting a religious persecution claim,
an applicant must demonstrate that she was persecuted on account of religion,
which includes imputed religious beliefs. Mezvrishvili v. United States Att’y
Gen., 467 F.3d 1292, 1296 (11th Cir. 2006).
We have stated that “persecution is an extreme concept, requiring more than
a few isolated incidents of verbal harassment or intimidation, and that mere
harassment does not amount to persecution.” Sepulveda, 401 F.3d at 1231(internal quotation marks and alteration omitted). Persecution may be established
based on the cumulative effect of several incidents. Ruiz v. Gonzales, 479 F.3d
9
762, 764, 766 (11th Cir. 2007) (involving a case where the alien was beaten twice,
threatened, and kidnaped by the FARC for eighteen days).
Persecution has been found in a number of egregious instances. See, e.g.,
Delgado v. United States Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007)
(involving an alien who was accosted at gunpoint and later severely beaten); Mejia
v. United States Att’y Gen., 498 F.3d 1253, 1257–58 (11th Cir. 2007) (holding that
attempted attacks on an alien over a period of eighteen months, culminating in a
roadside assault at gunpoint and resulting in broken nose constituted persecution);
De Santamaria v. United States Att’y Gen., 525 F.3d 999, 1008–10 (11th Cir.
2008) (holding that an alien who was yanked out of a car by her hair and
threatened with death, in combination with other death threats, a kidnaping, and
other threatening actions established past persecution); Sanchez Jimenez v. United
States Att’y Gen., 492 F.3d 1223, 1233 (11th Cir. 2007) (“[A]ttempted murder is
persecution.”). Nevertheless, “[n]ot all exceptional treatment is persecution.”
Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000); see also Zheng v. United
States Att’y Gen., 451 F.3d 1287, 1291 (11th Cir. 2006) (holding that limiting
employment opportunities and watching and occasionally searching an individual’s
home is not persecution); Djonda v. United States Att’y Gen., 514 F.3d 1168, 1174
(11th Cir. 2008) (holding that a minor beating and threats do not constitute
persecution). For example, even a detention lasting for five days, during which the
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alien was not harmed, does not compel a finding of persecution. Zheng, 451 F.3d
at 1289–91 (finding no persecution where alien was forced to watch anti-Falun
Gong re-education videos, dragged outside to stand in the sun for two hours, and
forced to pledge that he would not practice Falun Gong).
As we already explained, we conclude that the IJ’s adverse credibility
determination against Jiang was based on substantial evidence. The IJ did not limit
its adverse credibility finding to her coercive family planning policies claim and,
accordingly, the sole question is whether any other evidence establishes that she is
entitled to asylum or withholding of removal based on religious persecution.
Jiang contends that the following evidence shows that she was persecuted on
account of her religion: her husband’s arrest for a short time, a one-day detention
allegedly based on her Catholic faith, closure of a Catholic church, and an
unsuccessful attempt to arrest her again. These isolated events do not rise to the
level of persecution, see Zheng, 451 F.3d at 1289–91, so the IJ’s decision was
supported by substantial evidence. The IJ’s finding that Jiang lacked a well-
founded fear of persecution was also supported by substantial evidence because
both of Jiang’s parents were also unregistered Catholics and lived in China, and the
State Department’s Country Report indicates that China is not generally repressive
towards unregistered Catholics. See Sepulveda, 401 F.3d at 1231; Reyes-Sanchez,
369 F.3d at 1243. As with her coercive family planning policies claim, because
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Jiang has not established eligibility for asylum, she also has not met the higher
threshold for withholding of removal relief. See Al Najjar, 257 F.3d at 1293.
PETITION DENIED.
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