Lin v. Mukasey , 286 F. App'x 871 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2008
No. 06-60545 Charles R. Fulbruge III
Clerk
Ling Lin
Petitioner
v.
Michael B. Mukasey, US Attorney General,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
A97-743-019
Before JONES, Chief Judge, and GARWOOD, and JOLLY, Circuit Judges.
PER CURIAM:*
Ling Lin (Lin), a citizen of the People’s Republic of China, seeks review of
the Board of Immigration Appeal’s (BIA) order affirming the immigration judge’s
(IJ) decision to deny her application for asylum. She asserts that she fears
persecution under her country’s population control policy if she is removed. For
the reasons stated below, we affirm the BIA’s order of removal.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-60545
FACTS AND PROCEEDINGS BELOW
Lin was born on December 26, 1984, in the Fujian Province, Houdong
Village, Tantou Town, Changle City, China. While attending the International
Language School there, she met and fell in love with Qing Lin, and the couple
wanted to marry. However, under Chinese law a woman cannot marry before
the age of twenty-three, while a man cannot marry until he is twenty-five. As
neither Lin nor her boyfriend was of age at the time, they could not marry
legally. However, Lin’s parents allowed Qing Lin to move into their home with
Lin, despite the fact that cohabitation is also illegal under Chinese law.
The family planning officers in Lin’s village discovered that she was living
with her boyfriend. Both cohabitation and pregnancy outside of marriage are
illegal in China because they violate the Laws of Marriage and the country’s
single child family-planning policy. The officers placed Lin and her boyfriend on
a list of persons cohabiting illegally and classified Lin as an unmarried pregnant
woman. However, she was not in fact pregnant, and, indeed, so far as this
record shows, she never has been pregnant. Shortly thereafter, on December 1,
2003, Lin received a notice informing her that she must report on December 9
for a pregnancy examination. The notice indicated that if she failed to report,
she would be fined 3,000 R.M.B., and if she failed to report after a second notice,
she would be subject to sterilization. Lin testified that after receiving this
notice, she was afraid to go back to her home and school. She left her home
December 4, 2003 and then left China December 6, 2003. In a statement in
support of Lin’s application for asylum, Lin’s parents indicated that they helped
Lin leave China at this point because they feared that she would be forcibly
sterilized. She came to the United States in order to seek political asylum. Lin
testified that her parents had told her (when they told her is not stated) that at
some unspecified time after December 9, 2003 the family planning committee
went to her parents’ house, questioned her parents about where she had gone,
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No. 06-60545
and provided them with a second notification requiring her to again appear for
a pregnancy examination at some specified time (not stated in the record).
There is no evidence of any mention of sterilization on this occasion. This post-
December 9, 2003 visit by the family planning committee is not mentioned in
Lin’s parents’ February 2004 written statement or in Lin’s asylum application.
Lin entered the United States through Hidalgo, Texas on December 26,
2003. She was detained and issued a Notice to Appear on December 27, 2003,
which charged her with being subject to removal in violation of 8 U.S.C. §
1182(a)(6)(A)(I). Lin admitted the charges, conceded removability, requested
relief in the form of political asylum and withholding of deportation, and
requested relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT).
On February 9, 2005, an IJ conducted a hearing on the merits of Lin’s
application. Lin testified that she left China because she sought freedom and
because she would be persecuted if she stayed in China based on the one-child
policy. She also explained that she feared persecution in part because of the
experiences of her family members. The local family planning committee
sterilized one of her sisters-in-law after she had two children, and placed her
other sister-in-law on an IUD after the birth of her daughter. Furthermore,
after her mother had Lin’s two brothers, she was placed on an IUD. When the
IUD somehow got lost, Lin was born. A few months later, the family planning
committee forced Lin’s mother to be sterilized. Lin remembers that as a little
girl, she saw the scars that the sterilization surgery left on her mother. Lin
testified that because of her family’s experiences with the family planning
committee, when she received the notice requiring her to appear for a pregnancy
examination on December 9, she was afraid of what they would do to her, so she
did not go. Lin testified that she was not pregnant when she received the notice.
She indicated that she fears that if this country sends her back to China, she will
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No. 06-60545
be forcibly sterilized because she did not show up for the pregnancy examination
after two notices. She also testified that even if she is not sterilized immediately
upon her return to China, eventually she will be placed on an IUD and then
sterilized because she intends to marry and have more than one child.
The IJ found that Lin’s subjective fear was credible, but that it was not
objectively reasonable. The IJ stated that because Lin was not pregnant at the
time she was told to report for her pregnancy examination, there was no need to
skip the examination. The IJ further stated that according to evidence
submitted by Lin, effective October 1, 2003, the Chinese marriage laws made the
previously mandatory premarital health examinations optional. The IJ also
noted that China is beginning to loosen its one-child policy. Further, the IJ
indicated that although abortions remain common throughout China, forced
abortions are rare and illegal and the majority of the pressure for women to
obtain abortions stems from family and society, not the government. The IJ
found that Lin had not proven past persecution, that the evidence was
insufficient to show that future persecution should occur, and that her fear of
future persecution “is not objectively reasonable.” The IJ also determined that
the heightened requirement for withholding of removal had not been met, and
that Lin had not established that she would be tortured upon her return to
China. Therefore, the IJ ordered that Lin’s application for asylum, withholding
of removal, and relief under CAT be denied and ordered Lin removed to China.
Lin appealed the IJ’s decision to the BIA. On May 9, 2006, the BIA
affirmed the IJ’s decision, concluding that the IJ did not err in determining that
Lin failed to meet her burden of showing past persecution or a reasonable
possibility of suffering future persecution on account of a protected ground if
removed to China. Further, the BIA stated that Lin failed to present any
evidence that she was fined as threatened in the notice. The BIA noted that Lin
was not similarly situated to her mother or sisters-in-law because she did not
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No. 06-60545
have children and has never been pregnant. It also concluded that Lin failed to
satisfy the clear probability standard of eligibility required for withholding of
removal. Finally, the BIA concluded that Lin failed to show that it was “more
likely than not” that she would suffer persecution or torture if she returned to
China, so she did not qualify for protection under the CAT. Lin filed a timely
petition for review with this court.
DISCUSSION
We limit our discussion to the issue raised on appeal: Whether substantial
evidence supports the BIA’s denial of Lin’s asylum claim.1 For the reasons
stated below, we affirm the BIA’s order dismissing Lin’s asylum claim.
A. Asylum
The United States Attorney General and the Secretary of Homeland
Security have the discretion to grant asylum to “refugees.” 8 U.S.C. §
1158(b)(1)(A); Jukic v. I.N.S., 40 F.3d 747, 749 (5th Cir. 1994). The term
“refugee” includes a person who is outside of his or her country and is unable or
unwilling to return “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). The definition includes those
who have been persecuted under a coercive population control program, or who
legitimately fear such persecution. 8 U.S.C. §1101(a)(42)(B). The definition
provides, in pertinent part:
“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
1
Although Lin mentions withholding of deportation in the conclusion of her brief, she
does not brief the issue of withholding, nor does she brief the issue of relief under the CAT. By
failing to brief these issues, Lin has waived and abandoned them. See Soadjede v. Ashcroft,
324 F.3d 830, 833 (5th Cir. 2003); see also Calderon-Ontiveros v. I.N.S., 809 F.2d 1050, 1052
(5th Cir. 1986).
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No. 06-60545
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.
Therefore, to reverse the BIA’s determination that Lin is ineligible for
asylum, the evidence must compel a reasonable fact-finder to conclude that Lin
suffered past persecution or has a well-founded fear of future persecution on
account of a protected ground. 8 C.F.R. § 1208.13(b); Girma v. I.N.S., 283 F.3d
664, 669 (5th Cir. 2002) (citing I.N.S. v. Elias-Zacarias, 112 S. Ct. 812, 815-17
(1992)). Lin does not argue that she has been persecuted in the past; she argues
that she meets the definition of refugee because she has a well-founded fear that
she will be forced to undergo involuntary sterilization for her refusal to comply
with (or resistance to) a coercive population control program. See 8 U.S.C. §
1101(a)(42)(B). “To establish a well-founded fear of future persecution, an
applicant must demonstrate a subjective fear of persecution, and that fear must
be objectively reasonable.” Chen v. Gonzales, 470 F.3d 1131, 1135 (5th Cir. 2006)
(emphasis added; internal quotation marks and citations omitted). Because the
IJ credited Lin’s testimony regarding her subjective fear of persecution, that is
not at issue; the issue in this case is the objective reasonableness of her fear.
The objective prong requires the applicant to establish that a reasonable person
facing the same circumstances would fear persecution if deported. Id. The
applicant does not need to prove that it is more likely than not that she will be
persecuted in her home country. I.N.S. v. Cardoza-Fonseca, 107 S. Ct. 1207,
1222 (1987). She need only show that persecution is a “reasonable possibility.”
Id. at 1217.2
2
See also id. at 1221:
“There 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.
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No. 06-60545
B. Jurisdiction and Standard of Review
This court has jurisdiction over this asylum case under 8 U.S.C. §
1252(b)(2). When considering a petition for review, this court has the authority
to review only the BIA’s decision, unless the IJ’s decision has some impact on the
BIA’s decision. Mikhael v. I.N.S., 115 F.3d 299, 302 (5th Cir. 1997). This court
may review the IJ’s findings and conclusions if the BIA adopts them. Id. In this
case, the BIA affirmed the IJ’s decision based upon the reasons set forth therein,
which gives this court authority to review the IJ’s decision. Id.
On a petition for review of a BIA decision, this court reviews factual
findings for substantial evidence and questions of law de novo. Lopez-Gomez v.
Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). The substantial-evidence standard
for setting aside a BIA decision is a high one to meet. Under the
substantial-evidence standard, the BIA’s conclusion must be based on the
evidence presented and its decision must be substantially reasonable.
Carbajal-Gonzalez v. I.N.S., 78 F.3d 194, 197 (5th Cir. 1996). To reverse the
BIA’s determination that Lin is ineligible for asylum, Lin has the burden of
showing that the evidence compels all reasonable fact-finders to conclude that
she has a well-founded fear of future persecution based on her resistance to
China’s population control policies. See Elias Zacarias, 112 S. Ct. at 815; Chen,
470 F.3d at1134; Li v. Ashcroft, 356 F.3d 1153, 1157 (9th Cir. 2004); Girma, 283
F.3d at 669.
C. Analysis
Lin argues that she is a refugee and qualifies for asylum because she has
a well-founded fear that she will be forced to undergo involuntary sterilization
upon returning because she failed to attend her mandatory pregnancy tests. She
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.”
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No. 06-60545
also argues that she is entitled to asylum because even if she is not sterilized
immediately upon returning to China, she will eventually be put on an IUD and
sterilized because she wants to marry and have multiple children. The BIA and
IJ found that Lin was not eligible for asylum because her fear of persecution was
not objectively reasonable.
Substantial evidence supports the BIA’s and IJ’s conclusions that Lin’s
fear was not objectively reasonable. First, Lin was not pregnant and does not
indicate that she thought she was pregnant at the time the family planning
committee instructed her to appear for a pregnancy examination. Therefore, she
had no reason to fear punishment or persecution based on a pregnancy out of
wedlock. Furthermore, although her brief on appeal discusses incidents of
traumatic, “rape-like” pregnancy examinations described in cases from our sister
circuits, she does not present any evidence that her examination would have
been traumatic. See Li, 356 F.3d at 1158 n.4. She actually testified that she did
not know how her examination would have been conducted.
The evidence also does not compel a reasonable fact-finder to conclude that
Lin has a well-founded fear of sterilization upon her return to China. Lin does
not provide any evidence that women (to say nothing of women who are not and
have never been pregnant) who simply fail to take required pregnancy tests,
have actually been sterilized. She also does not present evidence that the family
planning committee in her town fined her for failing to appear for her first
appointment, that they have issued a warrant for her arrest, or that they
actually would sterilize her if she returned home. See Zhang v. Attorney
General, 128 Fed. Appx. 287, 289 (3d Cir. 2005) (holding that an alien had no
well-founded fear of persecution for resisting China’s coercive population control
program in part because he was not charged with a crime and there was no
warrant issued for his arrest). She also does not refer to any law or regulation
that requires or allows Chinese authorities to sterilize women who fail to attend
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No. 06-60545
mandatory pregnancy examinations. Lin even testified that she does not know
for certain whether she will be sterilized upon returning to China for missing her
pregnancy examination appointments.3 Thus, there is no evidence that the
family planning committee will follow through with its December 1, 2003 threat
of sterilization (in the event Lin should “twice” not “show up”) if Lin returns to
China.
Furthermore, this court could not find and the parties do not cite any case
indicating that an alien should be granted asylum on the basis of one conditional
“threat” contained in a notice to appear. See Boykov v. I.N.S., 109 F.3d 413, 417
(7th Cir. 1997) (upholding the BIA’s conclusion that an alien’s “account of vague
threats, without more is not a basis for fearing persecution in the future”).
Courts generally have concluded that aliens have a well-founded fear of future
persecution in cases that involve more than mere threats. See, e.g., Lim v.
I.N.S., 224 F.3d 929, 934-35 (9th Cir. 2000) (holding that an alien had a
reasonable fear of future persecution because he had received death threats, was
followed, appeared on a death list, and because his colleagues who received
similar threats were killed). In a similar case cited by Lin in support of her
arguments, the Ninth Circuit held that there was not substantial evidence to
support the BIA’s denial of asylum for a Chinese alien, Li, who demonstrated a
reasonable fear of future persecution. Li v. Ashcroft, 356 F.3d at 1158.
Moreover, the evidence there showed that Li was being retaliated against
because of her public defiance of and resistance to the coercive population control
3
This seems especially unlikely in the case of Lin, who is now 23 years old, is not
cohabiting with anyone (there is no evidence that Lin cohabited with anyone after December
4, 2003, or that she has kept in touch with her former boyfriend), and has never been
pregnant, whose first pregnancy examination was scheduled for a date when she was already
outside of China, and whose subsequent examination was noticed and to take place while she
was no longer living in China. And, there is no evidence that Chinese law, regulation, or
custom authorizes a notice requiring appearance at a pregnancy examination to be given to
a person who has already left the country.
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No. 06-60545
program. Id. at 1156, 1158. Li was threatened by the local family planning
committee, which told her that she would have to take pregnancy tests and that
if she were pregnant, her child would be aborted and her boyfriend sterilized.
Id. These threats were corroborated by the fact that she had already
experienced a retaliatory and extremely traumatic and forcible pregnancy
examination, that she was issued a government document indicating that she
and her boyfriend could never have children, and that a warrant was issued for
her arrest. Id. at 1159. One threat from the family planning committee does not
demonstrate that Lin’s situation is analogous to Li’s or that the conclusions of
the BIA and IJ are not supported by substantial evidence.
There is no evidence of forced sterilization of any woman, like Lin, who has
never had any children and is not and never has been pregnant. Thus, she is not
similarly situated to her mother and sisters-in-law who have been sterilized and
placed on IUDs after having children. Finally, Lin not only is not now
cohabiting, she is now old enough to marry in China, so she will not face the
same treatment for illegal cohabitation upon returning to China if she chooses
to marry. Therefore, the evidence does not suggest that Lin’s fear of forced
sterilization is objectively reasonable.
CONCLUSION
We hold that there is substantial evidence to support the BIA’s
determination that Lin is ineligible for asylum. The evidence does not compel
a reasonable fact-finder to conclude that Lin has a well-founded fear of future
persecution. Elias-Zacarias, 112 S. Ct. at 817. The BIA’s conclusion is based on
evidence presented and is substantially reasonable. Carbajal-Gonzalez, 78 F.3d
at 197. Therefore, the holding of the BIA is
AFFIRMED.
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