Qitian Ni v. Eric Holder, Jr. , 603 F. App'x 181 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2496
QITIAN NI,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: December 9, 2014 Decided: March 17, 2015
Before MOTZ and KING, Circuit Judges, and Arenda L. Wright
ALLEN, United States District Judge for the Eastern District of
Virginia, sitting by designation.
Petition denied by unpublished per curiam opinion.
ARGUED: Troy Nader Moslemi, Flushing, New York, for Petitioner.
Briena Lorraine Strippoli, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery,
Assistant Attorney General, Blair T. O'Connor, Assistant
Director, Juria L. Jones, Trial Attorney, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Qitian Ni (Mr. Ni), a native and citizen of the People’s
Republic of China (China), petitions for review of an order of
the Board of Immigration Appeals (BIA) dismissing his appeal
from the Immigration Judge’s denial of his requests for (1)
asylum, (2) withholding of removal, and (3) protection under the
Convention Against Torture (CAT).
Mr. Ni raises four arguments. First, Mr. Ni contends that
he demonstrated sufficient past persecution to warrant asylum,
and asserts that the BIA erred in finding that past persecution
required permanent injury. Second, Mr. Ni contends that the BIA
erred by refusing to consider his wife’s persecution
cumulatively with his persecution. Third, Mr. Ni disputes the
BIA’s determination that he failed to meet the standard for
economic persecution. Finally, Mr. Ni challenges the BIA’s
conclusion that CAT relief is unavailable because there is
insufficient evidence to establish that he would likely be
tortured by the Chinese government.
We reject Mr. Ni’s arguments because the BIA’s
determinations are supported by substantial evidence.
Therefore, Mr. Ni’s petition must be denied.
2
I.
Mr. Ni and his wife lived in the Fujian Province in China.
He was employed as a security guard.
The couple had one child together before they married on
February 29, 2008. Mr. Ni was unable to register their child
until he could produce an official marriage certificate.
Family planning officials attempted to coerce Mr. Ni’s wife
into wearing an intrauterine device, but were unable to do so
due to her medical concerns. Instead, Mr. Ni’s wife was
directed to report for a gynecological examination every three
months.
In November 2008, Mr. Ni’s wife discovered that she was
pregnant again while visiting her ailing father in Yunnan
Province. Mr. Ni asked his wife to verify her pregnancy at a
private clinic. Because he was worried about his wife being
reported to the government, Mr. Ni advised his wife to remain
inside her brother’s home.
In early 2009, Mr. Ni’s father-in-law passed away, and Mr.
Ni traveled to Yunnan Province to join his wife and assist with
funeral arrangements. During that visit, three family planning
officials arrived at the home to take Mr. Ni’s wife away for a
forced abortion.
Mr. Ni argued with the officials, claiming that they lacked
jurisdiction over his wife because the couple was from Fujian
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Province. Mr. Ni also criticized the population control
program. The officials asserted jurisdiction over Mr. Ni’s wife
because she was born in Yunnan Province.
A fight ensued between Mr. Ni and the officials. The
officials summoned police, who arrived and arrested Mr. Ni. Mr.
Ni’s wife was taken away and compelled to undergo a forced
abortion.
Mr. Ni was detained at the police station for approximately
ten hours. Mr. Ni testified that he was beaten with a baton,
suffering painful injuries. Mr. Ni sought medical attention for
his bruises and pain after his release. He was then notified to
pick up his wife at the facility where her pregnancy had been
terminated.
On March 3, 2009, Mr. Ni was fired from his job as a
security guard in Fujian Province because he had violated the
governmental family planning policy. He testified that he
attempted to find another job, but was unsuccessful because
employers refused to hire a violator of the family planning
policy. Mr. Ni continued his job search for approximately one
month.
Mr. Ni left China on October 1, 2009 and entered the United
States illegally on November 1, 2009. On July 2, 2010, Mr. Ni
applied with the United States Citizenship and Immigration
4
Service (USCIS) for asylum, withholding of removal, and
protection from removal under the CAT.
Following an interview with USCIS, Mr. Ni was issued a
Notice to Appear charging him with removability. Mr. Ni
conceded removability under Section 237(a)(1)(B) of the
Immigration and Nationality Act (INA or the Act), which provides
that any alien present in the United States unlawfully is
deportable. See 8 U.S.C. § 1227(a)(1)(B) (2014). Mr. Ni
resubmitted his application for relief.
On December 6, 2011, Mr. Ni appeared before an Immigration
Judge to testify in support of his application. The Immigration
Judge found Mr. Ni’s testimony credible, but denied his
application for asylum, withholding of removal and protection
under the CAT. The Immigration Judge found that Mr. Ni’s
treatment failed to rise to the level of persecution. The
Immigration Judge found no past persecution, and found any risk
of future persecution to be speculative. Additionally, the
Immigration Judge determined that Mr. Ni’s termination from his
government security job was not “so severe as to constitute a
threat to his life or freedom.” A.R. 37. The Immigration Judge
further determined that “[t]here is no serious evidence that
[Mr. Ni] would be tortured if he returned to China.” A.R. 38.
The Immigration Judge concluded that Mr. Ni did not qualify for
asylum, withholding of removal or protection under the CAT.
5
On December 30, 2011, Mr. Ni appealed the Immigration
Judge’s decision to the BIA. On November 14, 2013, the BIA
dismissed Mr. Ni’s appeal and affirmed the Immigration Judge’s
decision. The BIA agreed with the Immigration Judge that the
harm suffered by Mr. Ni on account of his “other resistance to a
coercive population control program” 1 did not amount to
persecution, noting that there was no evidence that Mr. Ni
required medical treatment for his injuries 2 or suffered any
long-term health effects. A.R. 6. Additionally, the BIA found
that Mr. Ni failed to show that “he would suffer any persecution
on account of ‘other resistance’ if he returned to China,” and
1
Section 101(a)(42) of the INA provides that “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.” 8 U.S.C. §
1101(a)(42). The Immigration Judge found that Mr. Ni’s
opposition to China’s population control program constituted
“other resistance.” The BIA agreed.
2
At oral argument, Mr. Ni asserted that the Immigration
Judge erred by finding that he did not require medical treatment
for the injuries that he suffered. This Court concludes that
any error regarding findings that Mr. Ni sought medical
treatment for injuries under these circumstances would be
harmless. See Ngarurih v. Ashcroft, 371 F.3d 182, 191 n.8 (4th
Cir. 2004) (“While the general rule is that an administrative
order cannot be upheld unless the grounds upon which the agency
acted in exercising its powers were those upon which its action
can be sustained . . . reversal is not required when the alleged
error clearly had no bearing on the procedure used or the
substance of the decision reached.”).
6
his claim that he or his wife would be sterilized “is
speculative at this time.” Id. The BIA further found that the
loss of his job was not “shown to be so severe as to constitute
a threat to his life or freedom . . . particularly . . . when
[Mr. Ni] only spent approximately one month looking for
employment.” Id. The BIA upheld the denial of CAT protection.
II.
When the BIA affirms and adopts an Immigration Judge’s
decision, and includes its own reasons for affirming, this Court
reviews both decisions as the final agency action. Marynenka v.
Holder, 592 F.3d 594, 600 (4th Cir. 2010). The BIA’s
determination that an alien is not eligible for asylum must be
upheld unless that determination is “manifestly contrary to the
law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D)
(2014). This Court may not disturb the BIA’s determinations on
asylum eligibility so long as those determinations “are
supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Tassi v. Holder, 660 F.3d
710, 719 (4th Cir. 2011). While we review the BIA’s legal
conclusions de novo, our standard of review of the agency’s
factual findings is “narrow and deferential.” Djadjou v.
Holder, 662 F.3d 265, 273 (4th Cir. 2011). We accept the
agency’s factual findings unless “any reasonable adjudicator
7
would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B).
The scope of our review of a final order denying
withholding of removal is likewise narrow. See Hui Pan v.
Holder, 737 F.3d 921, 926 (4th Cir. 2013). Where, as here, the
BIA concludes that the applicant has not met the applicable
burden of proof, “we will affirm the BIA’s determination if it
is supported by substantial evidence on the record considered as
a whole.” Niang v. Gonzales, 492 F.3d 505, 510 (4th Cir. 2007).
Even if the record “plausibly could support two results: the one
the [Immigration Judge] chose and the one [the petitioner]
advances, reversal is only appropriate where the court find[s]
that the evidence not only supports [the opposite] conclusion,
but compels it.” Id. at 511 (first alteration added) (internal
quotation marks omitted).
III.
A.
Mr. Ni challenges the BIA’s conclusion that he failed to
meet his burden of proof for asylum and withholding of removal.
He contends that a finding of past persecution does not require
permanent injury, and that the injuries inflicted on him by
Chinese government officials amounts to past persecution.
Section 1158 of Title 8 provides that the Secretary of
Homeland Security and the Attorney General have discretion to
8
grant asylum to any alien who is a “refugee.” 8 U.S.C. §
1158(b) (2014). A “refugee” is an alien who is unable or
unwilling to return to his or her home 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) (2014).
Applicants bear the burden of proving eligibility for
asylum. 8 C.F.R. § 1208.13(a) (2013). To meet their burden,
applicants may show that they have a well-founded fear of future
persecution, or that they suffered past persecution. Id. §
1208.13(b). Applicants who demonstrate past persecution are
presumed to have a well-founded fear of future persecution. Id.
§ 1208.13(b)(1).
Qualifying for withholding of removal also requires a
showing of persecution, but “‘implicates a more demanding
standard of proof.’” Lizama v. Holder, 629 F.3d 440, 446 n.3
(4th Cir. 2011) (quoting Mirisawo v. Holder, 599 F.3d 391, 396
(4th Cir. 2010)). Accordingly, an applicant “who fails to meet
the lower standard for showing eligibility for asylum will be
unable to satisfy the higher standard for showing withholding of
removal.” Mirisawo, 599 F.3d at 396.
For purposes of gaining asylum, persecution is construed as
involving “‘the infliction or threat of death, torture, or
injury to one’s person or freedom, on account of one of the
9
enumerated grounds in the refugee definition.’” Li v. Gonzales,
405 F.3d 171, 177 (4th Cir. 2005) (quoting Kondakova v.
Ashcroft, 383 F.3d 792, 797 (8th Cir. 2004)). The term
encompasses “‘actions less severe than threats to life or
freedom,’” but these actions must be more than mere harassment.
Id. (quoting Dandan v. Ashcroft, 339 F.3d 567, 573 (7th Cir.
2003)). If an applicant seeking asylum or withholding of
removal demonstrates that he or she “has been severely
physically abused or tortured, courts have not hesitated to
characterize such treatment as persecution.” Id.
If an applicant can establish past persecution based on a
protected factor, the applicant is presumed to have a well-
founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1).
“In contrast, if an alien has been mistreated in the past on the
basis of a protected factor, but the mistreatment did not rise
to the level of persecution, the alien cannot prove a well-
founded fear of future persecution merely by relying on the past
mistreatment.” Li, 405 F.3d at 176–77. Instead, applicants
must prove that they have reason to believe they will suffer
more, and be persecuted, upon return to their native country.
Id. at 177.
10
Mr. Ni contends that he made the necessary showing to
establish past persecution. 3 Specifically, Mr. Ni contends that
past persecution does not require permanent injury, and that the
injuries he suffered constitute past persecution. Pet’r Br. 9–
13.
We have held that “[e]ligibility for asylum based on
severity of persecution alone is reserved for the most atrocious
abuse.” Gonahasa v. INS, 181 F.3d 538, 544 (4th Cir. 1999)
(emphasis added). “[P]ersecution is an extreme concept that
does not include every sort of treatment that our society
regards as offensive.” Gormley v. Ashcroft, 364 F.3d 1172, 1180
(9th Cir. 2004) (internal quotation marks and alterations
omitted) (citation omitted). Brief detentions or repeated
3
The Immigration Judge noted that:
For years the Board of Immigration Appeals held that
coercive population control persecution to the wife
was persecution to the entire family and, therefore,
the husband could obtain asylum on that basis. See
Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997).
However, the Attorney General overruled that decision
in Matter of J-S-, 24 I&N Dec. 250 (AG. 2008). This
decision . . . has been upheld by the Court of
Appeals. See Yi Ni v. Holder, 613 F.3d 415 (4th Cir.
2010). Therefore what happened to respondent’s wife,
although clearly persecution, is not persecution to
respondent.
A.R. 35–36.
Accordingly, even though the mistreatment of his wife is
deplorable, Mr. Ni would have to demonstrate that he himself
suffered past persecution.
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interrogations fail to rise to the level of persecution. See
Dandan, 339 F.3d at 573 (upholding the BIA’s determination that
an applicant had not been persecuted despite a three-day
detention in which the applicant was interrogated, beaten, and
deprived of food and water). 4
“Courts . . . have been reluctant to categorize detentions
unaccompanied by severe physical abuse or torture as
persecution.” Li, 405 F.3d at 177 (citing cases).
In contrast, as noted above, when applicants who seek
asylum demonstrate that they have been “severely physically
abused or tortured, courts have not hesitated to characterize
such treatment as persecution.” Li, 405 F.3d at 177 (citing
cases).
Our decisions construe persecution narrowly. In Ngarurih
v. Ashcroft, 371 F.3d 182 (4th Cir. 2004), we held that the
petitioner could not establish past persecution severe enough to
warrant relief under 8 C.F.R. § 1208.13(b)(1)(iii) where,
because of his political activities, the petitioner had been
interrogated under threat of execution, held for a week in a
dark cement cell that officials flooded with cold water at
irregular intervals, and imprisoned for several months in
4
Comparatively, a one-time detainment of ten hours of this
nature likewise fails to rise to the level of persecution. See
Dandan, 339 F.3d at 573.
12
solitary confinement. Id. at 185. In Rusu v. INS, 296 F.3d 316
(4th Cir. 2002), we concluded that the past persecution the
petitioner suffered “was horrible,” but “not of the scale
warranting a grant of asylum” where that persecution involved
interrogation, assault, and torture, including the removal of
his teeth with pliers and a screwdriver. Id. at 325.
Mr. Ni refers to the decision in Sanchez Jimenez v. U.S.
Atty. Gen., 492 F.3d 1223 (11th Cir. 2007). In Sanchez Jimenez,
the petitioner was a member of the Conservative Party in
Colombia, which the Revolutionary Armed Forces of Colombia
(FARC) opposed. FARC threatened the petitioner’s life and the
lives of his family members repeatedly. Id. at 1233. On one
occasion, FARC attempted to murder the petitioner by shooting at
his moving vehicle. Id. FARC also attempted to kidnap his
daughter. Id. The Immigration Judge omitted the details of the
shooting from his legal analysis, and instead focused on the
fact that the petitioner “was not physically harmed.” Id. On
appeal, the Court of Appeals for the Eleventh Circuit found that
the multiple threats to the petitioner’s life amounted to
persecution—“put simply, attempted murder is persecution.” Id.
Mr. Ni’s reliance on Sanchez Jimenez is misplaced. Like
the petitioner in Sanchez Jimenez, Mr. Ni did not sustain
permanent physical injury. However, unlike the petitioner in
that case, Mr. Ni failed to present evidence that his life was
13
threatened or that attempts against his life were made.
Although Mr. Ni’s mistreatment—being detained and beaten by
Chinese officials—is abhorrent, this occurred once. This Court
has recognized that “[a] key difference between persecution and
less-severe mistreatment is that the former is ‘systematic’
while the latter consists of isolated incidents.” Baharon v.
Holder, 588 F.3d 228, 232 (4th Cir. 2009) (quotation marks and
citation omitted). Mr. Ni was detained for ten hours, beaten
with a baton, and released. This isolated incident, although
cruel, fails to rise to the level of persecution required for
relief under the Act.
“Because the burden of proof for withholding of removal is
higher than for asylum—even though the facts that must be proved
are the same—an applicant who is ineligible for asylum is
necessarily ineligible for withholding of removal.” Camara v.
Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004).
Accordingly, we are compelled to find that the BIA’s
determination that Mr. Ni did not suffer past persecution, and
lacked a well-founded fear of future persecution, was supported
by substantial evidence. The BIA’s determination is not
manifestly contrary to law.
B.
Mr. Ni next contends that the Immigration Judge failed to
consider the forced termination of his wife’s pregnancy
14
cumulatively with his own alleged persecution. “Violence or
threats to one’s close relatives is an important factor in
deciding whether a petitioner’s mistreatment” rises to the level
of persecution. Baharon, 588 F.3d at 232 (citing cases). “This
is especially so where the harm inflicted on family members adds
immediacy and severity to threats directed at the petitioner,
making it more reasonable for the petitioner to fear” suffering
the same mistreatment. Id. (citing cases).
In the cases cited, the petitioners’ family members and
friends were threatened with bodily harm or death, while the
petitioners were also being personally threatened. Mr. Ni’s
wife’s persecution—her forced abortion—is not persecution that
Mr. Ni will face, or could fear facing, upon his return to
China. Mr. Ni testified that if his wife were to get pregnant
again, she would be forced to terminate her pregnancy. This
well-founded fear of persecution for his wife is inapplicable to
Mr. Ni. See Yi Ni v. Holder, 613 F.3d 415, 427–28 (4th Cir.
2010) (holding that coercive population control persecution to a
wife is no longer considered persecution to the family). As
such, Mr. Ni’s wife’s persecution cannot be imputed to him. See
id. Accordingly, we hold that the Immigration Judge’s failure
to consider Mr. Ni’s wife’s abortion as cumulative to his
mistreatment is not manifestly contrary to law.
15
C.
Mr. Ni next challenges the Immigration Judge’s
determination that the loss of his job did not rise to the level
of economic persecution. Specifically, Mr. Ni argues that the
Immigration Judge engaged in speculation as to the likelihood of
Mr. Ni’s ability to obtain employment.
“While persecution is often manifested in physical
violence, the harm or suffering [amounting to persecution] need
not be physical, but may take other forms,” if the harm is “of
sufficient severity.” Mirisawo, 599 F.3d at 396 (alteration in
the original) (internal quotation marks omitted) (citing H.R.
Rep. No. 95–1452, at 5 (1978), reprinted in 1978 U.S.C.C.A.N.
4700, 4704). “[E]conomic penalties rise to the level of
persecution only if such sanctions are sufficiently harsh to
constitute a threat to life or freedom.” Id. (internal
quotation marks and citations omitted).
The Immigration Judge concluded that Mr. Ni’s testimony,
although credible, did not meet the standard of economic
persecution, particularly because he conducted a job search for
a relatively short period of time. The BIA agreed. To the
extent the BIA based its decision on dicta that speculated that
Mr. Ni could have obtained a job in the private sector, it is
harmless error. See Ngarurih, 371 at 191 n.8. There is
substantial evidence on the record that Mr. Ni conducted a job
16
search for only one month. Mr. Ni failed to demonstrate that
the record compels the conclusion that he suffered economic harm
so severe that it threatened his life or freedom.
Without more, the record falls short of justifying a
reversal of the BIA. We must uphold the BIA’s decision so long
as it is “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Tassi, 660 F.3d
at 719. Here, substantial evidence supports the BIA’s
determination that Mr. Ni failed to show that the loss of his
job was so severe as to constitute a threat to his life or
freedom. The record is insufficient to compel a contrary
conclusion.
D.
Mr. Ni’s final argument is that the BIA improperly denied
his claim for relief under the CAT. As stated above, our
standard of review is deferential to the BIA. We review a
denial of relief under the CAT for substantial evidence. See
Lizama, 629 F.3d at 449. “Under this standard, ‘administrative
findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.’”
Suarez-Valenzuela v. Holder, 714 F.3d 241, 245 (4th Cir. 2013)
(quoting 8 U.S.C. § 1252(b)(4)(B)).
An applicant for withholding of removal under the CAT must
“establish that it is more likely than not that he or she would
17
be tortured if removed to the proposed country of removal.” 8
C.F.R. § 1208.16(c)(2) (2015). The burden of proof rests with
the applicant. Id.
Mr. Ni contends that his credible evidence and testimony
entitles him to protection under the CAT. The Immigration Judge
found Mr. Ni to be completely credible, but also found that Mr.
Ni offered “no serious evidence that he would be tortured if he
returned to China.” A.R. 38. We are compelled to agree.
Although the facts presented here are troubling, our role must
be “to ensure that substantial evidence supports the BIA’s
judgment.” Gonahasa, 181 F.3d at 542. The evidence that Mr. Ni
presents in this appeal is insufficient to overcome the findings
and conclusions of the BIA.
IV.
Pursuant to the foregoing, we are compelled to deny Mr.
Ni’s petition for review, and must affirm the BIA’s order.
PETITION DENIED
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