Yue Mei Ding v. U.S. Attorney General , 416 F. App'x 809 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12451 ELEVENTH CIRCUIT
Non-Argument Calendar JANUARY 6, 2011
________________________ JOHN LEY
CLERK
Agency No. A078-690-823
YUE MEI DING,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 6, 2011)
Before HULL, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
Yui Mei Ding, a native and citizen of the People’s Republic of China, seeks
review of the final order of the Board of Immigration Appeals (“BIA”), affirming the
opinion of the Immigration Judge (“IJ”) and dismissing Ding’s claims for asylum and
withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C.
§§ 1158, 1231.1 On appeal, Ding argues that: (1) substantial evidence does not
support the BIA’s determination that she was ineligible for asylum and withholding
of removal because she failed to show a well-founded fear of future persecution for
resisting China’s coercive family planning policies; and (2) the BIA legally erred in
requiring her to establish a well-founded fear of future persecution by showing that
she (A) violated the Chinese government’s coercive family planning policies and, (B)
would “necessarily” be subject to persecution upon return to China. After thorough
review, we deny the petition.
In a case like this, in which the BIA issued its own opinion, we review “only
the decision of the BIA, except to the extent the BIA expressly adopts the IJ’s
decision.” Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007).
1
Ding has abandoned her claim for relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment because she fails to
make more than a passing reference to the claim on appeal. See Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
2
Here, the BIA issued its own opinion, upholding the IJ’s denial of asylum,
withholding of removal, and CAT relief, so we only review the BIA’s decision.
We review questions of law, including the BIA’s statutory interpretations, de
novo. Delgado v. U.S. Att’y Gen., 487 F.3d 855, 860 (11th Cir. 2007); Jaggernauth
v. U.S. Att’y Gen., 432 F.3d 1346, 1350 (11th Cir. 2005). However, following the
principles of Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837(1984), when we review the BIA’s construction of a statute that it administers, we
“will defer to the BIA’s interpretation of [the] statute if it is reasonable and does not
contradict the clear intent of Congress.” Quinchia v. U.S. Att’y Gen., 552 F.3d 1255,
1258 (11th Cir. 2008) (quotation omitted). In reviewing an agency’s interpretation
of a statute under Chevron, the first step of the analysis is to determine “whether
Congress has directly spoken to the precise question at issue. If the intent of Congress
is clear, that is the end of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at
842-43. However, “when a court reviews an agency’s construction of the statute
which it administers . . . and the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the agency’s answer is based on
a permissible construction of the statute.” Quinchia, 552 F.3d at 1258 (quotation and
alterations omitted).
3
Finally, we review findings of fact for substantial evidence to support them.
Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). Under the
substantial evidence test, we view the evidence in the light most favorable to the
agency’s decision and draw all reasonable inferences in favor of that decision. Id. at
1351. This review for substantial evidence is highly deferential: “To reverse factual
findings by the Board, we must find that the record not only supports reversal, but
compels it. The mere fact that the record may support a contrary conclusion is not
enough to justify a reversal of the administrative findings.” Id. (quotations,
alternations, and citation omitted).
The INA gives the Attorney General or the Secretary of Homeland Security
discretion to grant asylum to any non-citizen who meets the definition of “refugee.”
8 U.S.C. § 1158(b)(1)(A). A refugee is defined as:
any person who is outside any country of such person’s nationality . . .
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 . . .
political opinion.
8 U.S.C. § 1101(a)(42)(A). Section 101(a)(42)(B) of the INA further provides
asylum eligibility for the following persons:
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
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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, and thereby establishing asylum eligibility. Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
“To establish eligibility for asylum based on a well-founded fear of future
persecution, the applicant must prove (1) a subjectively genuine and objectively
reasonable fear of persecution, that is (2) on account of a protected ground.” Silva
v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006) (quotations and citation
omitted). The applicant must present “specific, detailed facts showing a good reason
to fear that he or she will be singled out for persecution on account of [the protected
ground].” Sepulveda, 401 F.3d at 1231. However, the applicant need not show that
she will be singled out if she can establish that her country engages in a pattern or
practice of persecution of a group of similarly situated persons on account of a
protected ground. Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1200 (11th Cir. 2009).
Notably, an alien who fails to establish that she has a well-founded fear of
persecution necessarily fails to establish eligibility for withholding of removal. Id.5
As to what constitutes a well-founded fear, the Supreme Court has explained
“that so long as an objective situation is established by the evidence, it need not be
shown that the situation will probably result in persecution, but it is enough that
persecution is a reasonable possibility.” I.N.S. v. Cardoza-Fonseca, 480 U.S. 421,
440 (1987) (quotation omitted). However, the Supreme Court declined to elaborate
further and, instead, observed that
[t]here is obviously some ambiguity in a term like “well-founded fear”
which can only be given concrete meaning through a process of
case-by-case adjudication. In that process of filling any gap left,
implicitly or explicitly, by Congress, the courts must respect the
interpretation of the agency to which Congress has delegated the
responsibility for administering the statutory program.
Id. at 448 (quotations omitted).
The BIA has determined that there is objective evidence supporting a genuine
fear of returning to China if the alien shows (1) “the details of the family planning
policy relevant to [her],” (2) “the alien violated the policy,” and (3) “the violation of
the family planning policy would be punished in the local area in a way that would
give rise to an objective fear of future persecution.” In re J-H-S-, 24 I.&N. Dec. 196,
198-99 (BIA 2007), pet. for review denied sub nom. Shao v. Mukasey, 546 F.3d 138(2d Cir. 2008); see also In re J-W-S-, 24 I.&N. Dec. 185, 185-89 (BIA 2007).
6
Here, the BIA did not legally err in requiring Ding to demonstrate that she
violated China’s coercive family planning policy because the requirement, as
articulated in the BIA’s three-part test for determining whether a genuine fear of
returning to China is objectively reasonable, is a reasonable interpretation of the term
“well-founded fear” in 8 U.S.C. § 1101(a)(42)(B). Indeed, Ding has not argued that
the BIA’s construction of § 1101(a)(42)(B) was unreasonable or at odds with the
legislative intent, and thus, has abandoned any argument to that end. Sepulveda, 401
F.3d at 1228 n.2. Nor did the BIA require Ding to demonstrate that she “necessarily”
would be persecuted in order to establish a well-founded fear of persecution, as Ding
argues. Rather, the BIA found that there was no pattern or practice of persecution
against respondents in precedential BIA decisions predicated on the birth of U.S.
citizen children and that Ding’s documentary evidence was not materially
distinguishable from the evidence presented in those cases. Thus, BIA did not legally
err in applying J-H-S- to Ding.
Further, substantial evidence supports the finding that Ding failed to
demonstrate that she has a well-founded fear of forced sterilization or a fine rising to
the level of persecution for resisting China’s coercive family planning policies.
Although the documentary evidence submitted in this case cites reports of forced
sterilizations from Fujian Province, the record as a whole indicates that China’s
7
family planning policy is largely dependent upon economic incentives and penalties
and, thus, does not compel the conclusion that there is a pattern or practice in Fujian
Province of forcibly sterilizing women like Ding or that Ding personally faces forced
sterilization if returned to China. Moreover, Ding’s particularized evidence does not
alter this conclusion. As a result, she has failed to meet her burden of proof for
asylum. Because she failed to meet her burden of proof for asylum, Ding also failed
to meet the higher burden required for withholding of removal. Accordingly, we
deny the petition in these regards.
DENIED.
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