Lin v. Atty Gen USA , 223 F. App'x 91 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
5-7-2007
Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5512
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Lin v. Atty Gen USA" (2007). 2007 Decisions. Paper 1133.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1133
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5512
RU LIN,
Petitioner,
v.
ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent.
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
BIA File No. A78-016-035
Argued March 1, 2007
BEFORE: SCIRICA, Chief Judge, McKEE and NOONAN*, Circuit Judges
(Filed: May 7, 2007)
STUART ALTMAN, ESQ. (Argued)
264 East Broadway
Suite 1003C
New York, NY 10002
*
The Honorable John T. Noonan, Jr., United States Circuit Judge for the Ninth
Judicial Circuit, sitting by designation.
LIU YU, ESQ.
Law Offices of Yu & Associates, PLLC
401 Broadway, Suite 506
New York, New York 10013
Attorneys for Petitioner
K.T. NEWTON, ESQ. (Argued)
Assistant United States Attorney
PATRICK L. MEEHAN
United States Attorney
VIRGINIA A. GIBSON
Assistant United States Attorney
Chief, Civil Division
615 Chestnut Street
Philadelphia, PA 19106
ERICA B. MILES, ESQ.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
OPINION
McKEE, Circuit Judge.
Petitioner Ru Lin, a native and citizen of China, petitions for review of an order of
the Board of Immigration Appeals affirming the Immigration Judge’s denial of her
application for asylum, withholding of removal and relief under the Convention Against
2
Torture (“CAT”). For the reasons that follow, we will deny Lin’s petition for review.1
I.
We assume the parties’ familiarity with the facts and proceedings below and
therefore set forth only those facts necessary for our brief discussion.
Lin testified before the IJ that government family planning officials harassed her
by frequently visiting her home and workplace, and requesting that she submit to a
gynecological examination to determine if she was pregnant. Lin refused to undergo the
examinations because she believed that they violated her right of privacy as well as basic
human rights. The IJ found Lin’s testimony credible, but concluded that she had
nevertheless failed to carry her burden of showing past persecution or a well-founded fear
of future persecution. The IJ reasoned that repeated requests to submit to a gynecological
exam did not rise to the level of “persecution.” The BIA adopted and affirmed the
decision of the IJ.2
II.
1
We have jurisdiction to review the final order of the BIA under 8 U.S.C. § 1252.
When the BIA adopts the decision of the Immigration Judge, this Court reviews the
decision of the IJ. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004) (citing Abdulai v.
Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001)).
2
In adopting the IJ’s decision, the BIA noted that, on appeal, Lin contended that
“the Chinese government forced her to be stripped naked regularly and constantly, for
involuntary gynecological exam to make sure she is not pregnant.” Joint Appendix
(“J.A.”) at 2. In fact, the Board notes, Lin never testified that she was required to report
for an exam. Rather, she testified that, although she was told to report for an exam, she
never went and was never forced to submit to one.
3
Lin seeks protection under the 1996 amendment to the Immigration & Nationality
Act (“INA”), 8 U.S.C. § 1101(a)(42)(A), which amended the definition of “refugee” to
include those individuals subject to China’s coercive family planning policies. The
provision reads 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 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).
In resolving asylum claims under the statute, the IJ must first determine whether
the applicant has been persecuted in the past or has a well-founded fear of future
persecution. If the alien establishes either past persecution or a well-founded fear of
future persecution, the IJ must then determine if that persecution was “on account of” the
alien’s “resistance” to a “coercive population control program.” See, e.g., Li v. Aschcroft,
356 F.3d 1153, 1158-61 (9th Cir. 2004). If the basis for the application is a well-founded
fear of future persecution, the alien must establish both a subjectively genuine fear of
persecution and an objectively reasonable possibility of persecution. INS v. Cardoza-
Fonseca, 480 U.S. 421 (1987).
A. Past Persecution
Substantial evidence supports the IJ’s determination that Lin does not qualify for
asylum based upon past persecution. To establish eligibility for asylum based on past
4
persecution Lin must first show that she suffered “one or more incidents rising to the
level of persecution[.]” Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003).
Lin’s evidence of past persecution consisted of her credible testimony that Chinese
family planning officials harassed her by visiting her workplace and her home every day
as a means of pressuring her to submit to a gynecological exam. We recognized in Li v.
Attorney General, that unfulfilled threats must be of a highly imminent and menacing
nature in order to rise to the level of persecution. 400 F.3d 157, 164 (3d Cir. 2005) (citing
Boykov v. INS, 109 F.3d 413, 416-17 (7th Cir. 1997). The petitioner there alleged threats
of physical mistreatment, detention and sterilization. Id. at 165. While we acknowledged
that the threats were “certainly disturbing,” we concluded that they were not “sufficiently
imminent or concrete . . . to be considered past persecution.” Id.; see also Boykov, 109
F.3d at 416 (“mere threats will not, in and of themselves, compel a finding of past
persecution.”); Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (unfulfilled threats, even
repeated death threats, do not qualify as past persecution unless they are so menacing they
cause significant actual harm).3
The threats relied on here are far less menacing than the threats that fell short in Li.
Lin does not allege threats of physical mistreatment, detention or sterilization. Rather,
she is claiming either that the family planning officials’ visits could themselves be
3
In general, unfulfilled threats are “‘within that category of conduct indicative of a
danger of future persecution.’” Li, 400 F.3d at 165 n.3 (quoting Lim, 224 F.3d at 936; see
also Boykov, 109 F.3d at 416).
5
considered persecution, or that they are tantamount to a threat of an unwanted
gynecological examination in the future which establishes a well-founded fear of
persecution. She does not allege, however, that the officials threatened to forcibly
examine her if she did not submit or that she was threatened with imprisonment or
permanent loss of employment if she refused.4
While we acknowledge that the threat of an uninvited procedure as physically
intrusive as a gynecological exam is disturbing, the events Lin described in her testimony
were both less imminent and less menacing than the threats described in Boykov, Lim and
Li v. Attorney General, and the threats in those cases did not rise to the level of past
persecution. Accordingly, we cannot conclude that the unfulfilled threats described by
Lin meet the standard for past persecution.
Lin urges us to adopt and apply the analysis of the Court of Appeals for the Ninth
Circuit in Li v. Ashcroft, 356 F.3d 1153 (9th Cir. 2004). There the court interpreted
4
Lin argues on appeal that she was labeled a “bad girl” by the family planning
officials and that she was unable to maintain employment when she escaped to another
province as a direct result of her refusal to submit to the exam. However, Lin did not
make that argument to the BIA. She only made it to the IJ. Accordingly, she has waived
any claim that concerns about future economic harm constitute a well-founded fear of
future persecution. See 8 U.S.C. § 1252(d)(1) (2005); see also Bonhometre v. Gonzales,
414 F.3d 442, 447 (3d Cir. 2005) (“To exhaust a claim . . . an applicant must first raise
the issue before the BIA or IJ.”); Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.
2003) (“[A]n alien is required to raise and exhaust his or her remedies as to each claim or
ground for relief if he or she is to preserve the right of judicial review of that claim.”);
Alleyne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989) (noting that the exhaustion
requirement “bars consideration of particular questions not raised in an appeal to the
Board”).
6
“other resistance” to include opposition to forced pregnancy examinations administered
under China’s coercive family planning policy. The IJ here correctly noted that we have
not yet had occasion to consider the parameters of “other resistance to a coercive
population control program” under 8 U.S.C. § 1101(a)(42)(B). However, we need not
reach the issue of“other resistance” because the harm Lin alleges is not tantamount to
persecution.
Unlike the case before us, in Li the petitioner was able to meet her burden of
establishing that the treatment involved rose to the level of persecution. Li, 356 F.3d at
1159. There, government officials “made good” on threats that she would “pay” for her
announced opposition to the family planning policy. Id. at 1158. Officials forcibly took
Li to a birth control center where she was subjected to a “crude and aggressive”
gynecological exam while being held down by two nurses. Id. The examination
continued for half an hour despite Li’s “vehement protests.” Id. When officials realized
that Li was not pregnant, they told her that she could be subjected to the same
examination at any time in the future and that if a subsequent examination discovered a
pregnancy she would be forced to have an abortion and her boyfriend would be sterilized.
Id. The court concluded that the “timing and physical force” associated with the exam
“compel[led] the conclusion that its purpose was intimidation and not legitimate medical
practice.” Id. In fact, her treatment at the hands of family planning officials was
characterized as “rape-like.” Id. at n.4 (citing Lopez-Galarza v. INS, 99 F.3d 954 (9th
Cir. 1996) (recognizing that rape may constitute persecution)).
7
In contrast, Lin’s evidence of persecution consists of frequent visits by family
planning officials who repeatedly asked her to submit to an exam. Though we may view
such official harassment by the government as odious, it does not compel a conclusion
that the conduct was persecution.
A “rape-like,” “forced gynecological examination lasting thirty minutes and
attended by threats does not meet any civilized understanding of a routine medical
procedure,” id. at n.2, and can readily satisfy the statutory requirement of persecution.
However, fears of official visits to one’s home and workplace or concerns that the
community would look down on an unmarried woman for submitting to a gynecological
exam, does not rise to that level. Indeed, Lin admits that if she were to attend the
examination she does not know what would happen.
B. Future Persecution
Past threats that do not rise to the level of past persecution can be indicative of a
danger of future persecution. Li, 400 F.3d at 165, n.3. The IJ found that Lin testified
credibly and therefore the subjective prong of our inquiry into a well-founded fear of
future persecution is satisfied.
The objective prong requires Lin to show the reasonableness of her fear of
persecution. Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001). Here again, the IJ’s
rejection of Lin’s claim is supported by substantial evidence.
Lin cites her refusal to submit to the exams required by the local family planning
officials, their harassment of her at home and at work, and the 2003 State Department
8
Country Report as objective evidence of her well-founded fear of persecution.
As explained above, Lin’s testimony does not compel a finding that her fear of
future persecution is reasonable because the treatment she fears does not rise to the level
of persecution. There is no evidence that she will be forcibly examined in a manner that
would constitute persecution. She provided no evidence that she would be subjected to a
forced exam or other harsh treatment. See Boykov, 109 F.3d at 417 (finding no
reasonable basis to believe alien would be persecuted upon return to Bolivia where court
determined past treatment did not amount to persecution and she presented no evidence
that she would suffer less humane treatment if returned). Lin’s claim also fails to find
objective support in the 2003 State Department Country Report.
Under our deferential standard of review, we find substantial evidence also
supports the conclusion that Lin did not have an objectively well-founded fear of future
persecution.
III.
Lin also appeals the denial of her claims for withholding of removal and relief
under the Convention Against Torture. Because both claims require meeting a
significantly higher burden of proof than a claim for asylum, we also affirm the decision
to deny these claims. See Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004) (“An alien
who fails to establish that he or she has a well-founded fear of persecution, so as to be
eligible for a grant of asylum, necessarily will fail to establish the right to withholding of
removal.”); Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004) (“the standard for
9
invocation of the CAT is more stringent than the standard for granting asylum.”).
IV.
For the reasons set forth above, we conclude that the IJ’s rejection of Lin’s claim
for relief under the INA, and under the Convention Against Torture is supported by
substantial evidence. Accordingly, we will affirm the decision of the BIA.
10