Mei Zhen Li v. U.S. Attorney General , 134 F. App'x 343 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-13996 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar June 8, 2005
________________________ THOMAS K. KAHN
CLERK
Agency No. A77-354-235
MEI ZHEN LI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
__________________________
Petition for Review of a Final Order
of the Board of Immigration Appeals
_________________________
(June 8, 2005)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Mei Zhen Li, a citizen and national of the People’s Republic of China,
petitions this Court for review of the Board of Immigration Appeals’ (BIA’s) final
order affirming the Immigration Judge’s (IJ’s) removal order, which found that Li
failed to establish eligibility for asylum and withholding of removal under the
Immigration and Nationality Act (INA) and the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (CAT). Li asserts the IJ erred in determining (1) she failed to
establish eligibility for asylum, and (2) she failed to establish eligibility for
withholding of removal under the INA or the CAT. The IJ did not err. We deny
the petition.
I. DISCUSSION
Li claims if she were removed to China she would be forced to have an
abortion because she has violated the government’s family planning policy. She
alleges that, since arriving in the United States in 2001 without a valid entry
document, she has given birth to a daughter and was expecting a second child at
the time of the hearing before the IJ. Li asserts the IJ did not adequately consider
the likelihood of persecution she would face upon being returned to China. To
support her claim she would be tortured upon return, she relies heavily upon the
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U.S. Department of State Country Report on Human Rights Practices for 2003,
even though this document was not before the IJ.1
A. Asylum
We review the IJ’s decision in this case, not the BIA’s, because the BIA
affirmed the IJ’s decision without an opinion, thereby making the IJ’s decision the
final agency determination. Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1284
n.1 (11th Cir. 2003). The IJ’s factual determination that an alien is not entitled to
asylum must be upheld if supported by substantial evidence. See Mazariegos v.
Attorney Gen., 241 F.3d 1320, 1323 (11th Cir. 2001). Under this highly
deferential standard of review, a denial of asylum may be reversed only if the
evidence would compel a reasonable factfinder to find the requisite fear of
persecution exists. INS v. Elias-Zacarias, 112 S. Ct. 812, 815 n.1 (1992).
An alien who arrives in or is present in the United States may apply for
asylum. See 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.” See 8 U.S.C.
§ 1158(b)(1). A “refugee” is:
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We cannot consider this report. See 8 U.S.C. § 1252(b)(4)(A) (providing “the court of
appeals shall decide the petition only on the administrative record on which the order of removal is
based”).
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any 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, religion,
nationality, membership in a particular social group, or political
opinion
8 U.S.C. § 1101(a)(42)(A). This statute addresses forced abortions as follows:
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)(B).
The asylum applicant carries the burden of proving statutory “refugee”
status. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). If the
applicant meets this burden, then the Attorney General may exercise his discretion
to grant the applicant asylum. Id. An alien is entitled to asylum if she can
establish, with specific and credible evidence: (1) past persecution on account of a
statutorily listed factor; or (2) a “well-founded fear” that a statutorily listed factor
will cause future persecution. 8 C.F.R. § 208.13(a), (b). If an alien demonstrates
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past persecution, she is presumed to have a well-founded fear of future
persecution. 8 C.F.R § 208.13(b)(1). If, however, an alien does not establish past
persecution, she bears the burden of demonstrating a well-founded fear of
persecution by showing that (1) she fears persecution based on a statutorily listed
factor, (2) there is a reasonable possibility she will suffer persecution in her home
country, and (3) she could not avoid persecution by relocating to another part of
her home country, if, under all of the circumstances, it would be reasonable to
expect her to do so. See 8 C.F.R. § 208.13(b)(2), (3)(i).
Substantial evidence supports the IJ’s finding that Li failed to demonstrate
either past persecution or a well-founded fear of future persecution on account of a
protected ground. First, Li did not establish past persecution. She presented no
evidence, either documentary or testimonial, showing she previously had been
persecuted in China based upon its family planning policy.
Second, Li did not meet her burden to establish a well-founded fear of
future persecution because she did not show there was a reasonable possibility she
would suffer persecution in her home country. Although Li testified she feared
she would be forced to undergo an abortion or sterilization if she returned to
China, she presented little, if any, evidence to support this assertion, and in fact,
virtually all of the evidence in the record was to the contrary. Although the U.S.
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Department of State’s1998 Profile of Asylum Claims and Country Conditions for
China acknowledged that forced abortions continued to occur in certain areas, it
noted that the Fujian province, where Li was from, had only “lax enforcement” of
the family planning rules, and that a second child was often permitted if the first
child was a female, as Li’s first child was. Two children were permitted without
the necessity of paying a fine for the second child. It also stated that, for children
born abroad like Li’s children, parents faced only modest fines upon return to
China, based upon the additional costs of housing and schooling the children.
These children were even characterized as “bonus” children.
The 2002 China Country Assessment, apparently from the United Kingdom,
noted the Fujian province was lax in implementing the birth control policies, and
the policy was “less strict in Fujian than in any other province except
Guangdong.” It stated authorities in Fujian worked by incentive schemes rather
than forced abortions and sterilization, which were not tolerated. Finally, the U.S.
Department of State’s 2001 Country Report on Human Rights Practices noted that,
in rural areas of China, where 70 percent of the population lived, the one-child
policy was not strictly enforced and that, outside the cities, exceptions to the
policy were becoming “the norm.” Accordingly, substantial evidence in the record
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supported the IJ’s conclusion that Li did not establish a well-founded fear of
future persecution.
B. Withholding of Removal
Li asserts she is entitled to withholding of removal under the INA and the
CAT. The IJ’s factual determination an alien is not entitled to withholding of
removal must be upheld if it is supported by substantial evidence. See Najjar, 257
F.3d at 1283. An alien is entitled to withholding of removal under the INA if she
can show her life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion.
Mendoza, 327 F.3d at 1287 (11th Cir. 2003). The alien bears the burden of
demonstrating it is “more likely than not” she will be persecuted or tortured upon
being returned to her country. Fahim v. U.S. Attorney General, 278 F.3d 1216,
1218 (11th Cir. 2002). If, however, “‘an applicant is unable to meet the ‘well-
founded fear’ standard for asylum, [s]he is generally precluded from qualifying for
either asylum or withholding of deportation.’” Al Najjar, 257 F.3d at 1292-93
(citation omitted).
To obtain withholding of removal under the CAT, the burden is on the
applicant to establish it is “more likely than not” she will be tortured in the country
of removal. 8 C.F.R. § 208.16(c)(2).
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Torture is defined as any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for
such purposes as obtaining from him or her or a third person
information or a confession, punishing him or her for an act he or she
or a third person has committed or is suspected of having committed,
or intimidating or coercing him or her or a third person, or for any
reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity.
Id. § 208.18(a)(1). The burden of proof for an applicant for withholding of
removal under the CAT, as with the applicant under the INA, is higher than the
burden imposed on an asylum applicant. Al Najjar, 257 F.3d at 1303.
Because Li failed to establish asylum eligibility, she cannot establish
eligibility for withholding of removal under the INA or the CAT. In addition, Li
failed to demonstrate she would more likely than not be persecuted or tortured
upon her return to China. The record supports the IJ’s conclusion that Li would
not face forced abortion or sterilization if returned to the Fujian province of China
after having two children abroad.
II. CONCLUSION
We find the IJ’s decision was supported by substantial evidence, and deny
the petition for review.
PETITION DENIED.
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