Wen Lin v. Eric Holder, Jr. , 478 F. App'x 219 ( 2012 )

Case: 11-60246 Document: 00511884649 Page: 1 Date Filed: 06/12/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 12, 2012
No. 11-60246 Lyle W. Cayce
Clerk
WEN HUA LIN,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A079 103 952
Before STEWART, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
Petitioner Wen Hua Lin (“Lin”), a native and citizen of the People’s
Republic of China (“China”), petitions this court for review of an order of the
Board of Immigration Appeals (“BIA”) affirming the denial by the Immigration
Judge (“IJ”) of his application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). The petition is
DENIED.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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FACTS AND PROCEDURAL BACKGROUND
In October 2000, Lin traveled from China to Mexico and subsequently
entered the United States without documentation. On April 1, 2001, Lin was
issued a notice to appear charging him with removability on the basis that he
was an alien present in the United States without having been admitted or
paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). He conceded removability and
requested asylum, withholding of removal, and protection under the CAT.
In May 2002, Lin received a hearing before an IJ and testified that in
1999 he married a woman in China but was not permitted to record the
marriage because he was 21 years old and thus too young to marry under
Chinese law. His wife became pregnant, and the local authorities discovered
the pregnancy. Because it was illegal for the couple to have a baby as they were
not legally married, family planning officials arrested Lin’s wife twice. Upon
the second arrest, family planning officials took Lin’s wife from the couple’s
home and forced her to have an abortion. When Lin arrived home and learned
what had happened, he and some friends went to the family planning office to
ask the chairman where he could find his wife. The chairman explained that
Lin’s wife was pregnant, the pregnancy was illegal, and it was “normal” for her
to have an abortion. Lin then began to argue with the chairman. During their
argument, a person not associated with Lin arrived and attempted to fight the
chairman. Lin tried to intervene, but the chairman shocked Lin with an electric
baton. Lin, his friends, and the other person were detained, but later escaped
through a window. Thereafter, Lin went into hiding with two of his friends.
Eventually, Family Planning Officials (“FPOs”) arrested Lin’s friends, but could
not find Lin. Lin’s family informed him that the FPOs and the police had been
looking for him everywhere.
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Lin explained that the FPOs sent him a notice ordering him to be
sterilized. When he failed to have the surgery, the FPOs assessed a 10,000
Chinese Yuan (“yen”) fine.1 Because Lin’s family did not have the money to pay
the fine, the Chinese government refused to allocate farming land to them. Lin
testified that after the incident at the family planning office, he traveled to the
Republic of Suriname2 (“Suriname”) for several months to work and then
returned to China. Lin then borrowed $60,000 to pay a “snakehead”3 to arrange
his travel to Mexico in order to cross the United States-Mexico border into the
United States. Although he was not arrested upon returning to China from
Suriname, Lin explained that he feared being returned to China because the
police would arrest him and have him sterilized.
On cross-examination, the Government asked Lin of the whereabouts of
the notice ordering him to undergo sterilization procedures. Lin responded that
he gave the notice to his attorney. His attorney explained that he had the
document translated, along with other new documents,4 but neglected to file
them with the immigration court. The Government objected to the documents
being admitted into evidence. The IJ sustained the objection on the ground that
the Government did not have an opportunity to review the documents. Instead,
the IJ entered these documents into the record only for identification purposes.
1
Under the current exchange rate, 10,000 Chinese Yuan is equal to approximately
$1,590 U.S. Dollars.
2
The Republic of Suriname is a country in northern South America.
3
A “snakehead” is a smuggler. See Chen v. Gonzales, 470 F.3d 1131, 1133 (5th Cir.
2006).
4
The other new documents included a letter from Lin’s wife explaining the
circumstances surrounding the abortion, and letters from Lin’s friends that explained Lin’s
fear that he would be sterilized upon his return to China.
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On May 20, 2002, the IJ denied Lin relief on the basis that his asylum
application was not timely and that he was not entitled to withholding of
removal or relief under the CAT because he was not credible. Lin then
appealed the IJ’s decision to the BIA. The BIA, however, ruled that the IJ’s
timeliness analysis was based in part on an erroneous factual determination
and that the IJ’s credibility determination was improper. Thus, the BIA
remanded the case explaining that “the parties will be allowed to submit further
evidence regarding the respondent’s applications for relief.”
On remand, Lin submitted an updated State Department Country Report
on China and a copy of 8 U.S.C. § 1101(a)(42)(B), but nothing else. Although
the IJ considered all of the evidence submitted by Lin, including the notice
ordering him to be sterilized and other evidence entered for identification
purposes, the IJ denied Lin’s application for asylum, determining that Lin was
not credible based on discrepancies between Lin’s evidence and the Country
Reports, and that Lin had not established that it was more likely than not that
he would be tortured if returned to China. The IJ also concluded that the
asylum application was not timely. Lin then appealed the IJ’s decision.
The BIA found that the asylum application was timely, but affirmed on
the ground that Lin was ineligible for relief based on his wife’s forced abortion
because he stated on his asylum application that he was single. Thereafter, Lin
petitioned this court for review. On December 22, 2006, we granted the
Government’s unopposed motion to remand the proceedings to the BIA. The
BIA, in turn, remanded the proceedings to the IJ to reexamine Lin’s claims in
light of Matter of S-L-L, 24 I. & N. Dec. 1 (BIA 2006). In its order, the BIA
explained further that the IJ’s earlier adverse credibility determination was
unsupported by the record and noted that new evidence regarding country
conditions and forensic testing of other evidence might be relevant on remand.
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At the June 25, 2007, hearing, Lin submitted a new Country Report, but
did not enter into evidence the notice ordering him to be sterilized, and it does
not appear that forensic analysis was performed on any of the evidence.
Although the IJ determined Lin to be credible, it issued a new opinion denying
Lin relief. The IJ found it “difficult to believe” that Chinese officials ordered Lin
to be sterilized, explaining that such an order appeared contrary to Chinese law
and that Lin submitted no background evidence of men in his situation being
ordered sterilized. The IJ noted that Lin did not submit evidence corroborating
this portion of his claim, his wife did not mention sterilization in her letter, and
the other letters explained that Lin feared sterilization, but did not say that Lin
was ordered to be sterilized. The IJ observed that the purported notice ordering
Lin to be sterilized along with other documents were entered into the record but
not admitted into evidence; thus, the IJ declined to consider these documents.
Moreover, the IJ noted there was no evidence that authorities attempted to
sterilize Lin’s wife. Despite these concerns, however, the IJ accepted Lin’s
assertion that he was ordered sterilized.
Ultimately, the IJ determined that Lin had not been the victim of past
persecution. To the extent Lin claimed past persecution on the basis of his
wife’s forced abortion, the IJ determined that Lin’s claim failed pursuant to
Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008). The IJ went on to find that Lin
resisted the family planning policies by going to the family planning office to
protest the forced abortion, but determined that the harm he suffered – an
electric shock from the chairman’s baton and a temporary confinement – did not
amount to persecution. Although the IJ found that a notice evincing the
Chinese Government’s intentions to sterilize a person would give the person
reasonable cause to fear that he would be sterilized, the IJ determined that Lin
would be able to return to China and relocate to avoid sterilization, and that it
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would be reasonable to require him to do so. The IJ also denied withholding of
removal and CAT protection on the basis that Lin had not established that it
was more likely than not that he would be sterilized or tortured.
Lin then filed his notice of appeal with the BIA, challenging the IJ’s
decision on the following grounds: (1) the IJ incorrectly concluded that Lin did
not suffer past persecution and did not have a well-founded fear of future
persecution on the basis that he was detained for resisting family planning
policies and faces sterilization upon his return; (2) the IJ’s decision was contrary
to Congressional intent; and (3) any other ground. Lin’s three-page brief to the
BIA, however, argued only that Lin was “betrayed by the system” because
changes in the law that occurred while his application was pending made him
ineligible for relief.
The BIA agreed with the IJ and dismissed the appeal. It first determined
that Lin was not entitled to relief on the basis of his wife’s forced abortion. The
BIA went on to agree with the IJ’s decision to deny Lin’s asylum application for
failing to meet his burden of proof. According to the BIA, the electric shock and
brief detention did not amount to persecution and thus Lin had not established
that he suffered past persecution. It also determined that Lin had not shown
a well-founded fear of future persecution because he failed to submit reasonably
available corroborating evidence to support the claim. Specifically, the BIA
noted that Lin did not submit a copy of the notice requiring that he report for
sterilization or any background evidence that Chinese authorities sterilized
men who attempted to, but ultimately did not, have a child before the age when
they were permitted to marry. The BIA also noted that Lin’s wife did not
mention the threat of sterilization in her letter. Finally, the BIA determined
that Lin had not demonstrated that the fine imposed constituted a severe
economic disadvantage. Because Lin could not meet the burden of proof
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required to establish eligibility for asylum, the BIA reasoned, he could not
demonstrate eligibility for withholding of removal or relief under the CAT. Lin
timely petitioned this court for review.
STANDARD OF REVIEW
Because the BIA made its own determination and did not adopt the IJ’s
order, we review only the BIA’s decision and address the IJ’s decision only to
the extent it impacted the BIA’s reasoning. See Ontunez-Tursios v. Ashcroft,
303 F.3d 341, 348 (5th Cir. 2002). We “review factual findings of the BIA and
IJ for substantial evidence, and questions of law de novo, giving ‘considerable
deference to the BIA’s interpretation of the legislative scheme it is entrusted to
administer.’” Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007) (quoting
Fonseca-Leite v. I.N.S., 961 F.2d 60, 62 (5th Cir. 1992)). Only where the
evidence compels a contrary result will we reverse those factual findings. Id.We will not disturb the BIA’s determination that an alien does not have a
well-founded fear of persecution unless “a reasonable fact finder would have to
conclude that the requisite fear of persecution existed.” Abdel-Masieh v. I.N.S.,
73 F.3d 579, 585 (5th Cir. 1996) (internal quotation marks and citation
omitted). The BIA, however, may not overturn an IJ’s factual findings “simply
because the [BIA] would have weighed the evidence differently or decided the
facts differently had it been the factfinder.” Board of Immigration Appeals:
Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,889
(Aug. 26, 2002) (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564,
573 (1985)). The BIA may overturn an IJ’s factual findings only if they are
clearly erroneous. Alvarado de Rodriguez v. Holder, 585 F.3d 227, 234-35 (5th
Cir. 2009).
Whether the BIA applied the correct standard of review is reviewed de
novo. Id. at 235. We further review the BIA’s decision to ensure that the alien
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received a full and fair consideration of the facts. Abdel-Masieh, 73 F.3d at 585.
Though the BIA need not catalogue every piece of evidence, its decision must
reflect that it meaningfully considered the relevant substantial evidence in
support of the alien’s claims. Id.DISCUSSION
Initially, we must consider the question of whether we have jurisdiction
to entertain Lin’s appeal. The Government argues that we lack jurisdiction
because Lin failed to challenge the IJ’s determinations that he had not
established that he suffered past persecution or would be subjected to future
persecution if returned to China. In fact, the Government argues that “Lin
conceded his ineligibility before the [BIA]; he did not argue his cumulative
experiences rose to the level of persecution; he did not argue the fine imposed
upon his family presented a severe economic disadvantage; nor did he maintain
likely torture.”
As always, we have “jurisdiction to determine our own jurisdiction.”
Omari v. Gonzales, 419 F.3d 303, 306 (5th Cir. 2005) (“Omari I”). Although we
generally have jurisdiction to review final orders of removal, “under 8 U.S.C. §
1252(d), we ‘may review a final order of removal only if . . . the alien has
exhausted all administrative remedies available to the alien as of right.’”
Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009) (“Omari II”). If a petitioner
fails to raise an issue before the BIA, the petitioner has failed to exhaust his
administrative remedies. See Heaven v. Gonzales, 473 F.3d 167, 177 (5th Cir.
2006). “A remedy is available as of right if (1) the petitioner could have argued
the claim before the BIA, and (2) the BIA has adequate mechanisms to address
and remedy such a claim.” Omari II, 562 F.3d at 318-19. Therefore, we lack
jurisdiction to review issues the alien has not exhausted by presenting to the
BIA.
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In Lin’s notice of appeal to the BIA, Lin challenged the IJ’s decision on the
following grounds: (1) the IJ incorrectly concluded that Lin did not suffer past
persecution and did not have a well-founded fear of future persecution on the
basis that he was detained for resisting family planning policies and faces
sterilization upon his return; (2) the IJ’s decision was contrary to Congressional
intent; and (3) any other ground. Despite Lin’s failure to brief these issues, the
BIA addressed them.
Recently, in Lopez-Dubon v. Holder, 609 F.3d 642 (5th Cir. 2010), we
addressed “whether an issue not properly raised by a petitioner in immigration
proceedings but [was] nevertheless addressed on the merits by the BIA may be
considered by this court.” We determined that “‘[i]f the BIA deems an issue
sufficiently presented to consider it on the merits, such action by the BIA
exhausts the issue as far as the agency is concerned and that is all that [8
U.S.C.] § 1252(d)(1) requires to confer our jurisdiction.’” Id. at 644 (quoting
Sidabutar v. Gonzales, 503 F.3d 1116, 1119 (10th Cir. 2007)).
The Government attempts to distinguish Lopez-Dubon from this case by
arguing that the alien in Lopez-Dubon raised the unexhausted issue before the
BIA in a motion to reconsider, whereas Lin failed to mention the issues he now
raises in his brief or any later motion. The Government further attempts to
distinguish Lopez-Dubon by arguing that Lin conceded that he was not entitled
to relief.
However, in deciding Lopez-Dubon, we reasoned that “the purpose of the
statutory exhaustion requirement is to allow the BIA ‘the opportunity to apply
its specialized knowledge and experience to the matter’ and to ‘resolve a
controversy or correct its own errors before judicial intervention.’” Id. (quoting
Sidabutar, 503 F.3d at 1122). In our view, nothing in Lopez-Dubon suggests
that its holding hinged upon the motion for reconsideration. While Lin failed
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to argue the issues before the BIA in his brief or any later motion, the purpose
of the statutory exhaustion requirement has been met. Furthermore, Lin did
concede he was not entitled to relief, but read in context with the rest of his
brief, his statement only related to relief based exclusively on his spouse’s forced
abortion. Lin conceded relief based exclusively on his spouse’s forced abortion
because a change in the law had occurred during the lengthy proceedings. See
Matter of J-S-, 24 I. & N. Dec. 520, 527-32 (Att’y Gen. 2008) (Attorney General
ruled spouses of Chinese victims of forced abortions were no longer entitled to
relief based solely on the forced abortion.)
Accordingly, we have jurisdiction to consider Lin’s appeal.
I. Whether the BIA’s determination that Lin failed to provide corroboration
was proper.
An alien seeking asylum has the burden of establishing that he is a
“refugee.” 8 C.F.R. § 1208.13(a). A person is a “refugee” if he has suffered past
persecution or has a well-founded fear of future persecution. 8 C.F.R. §
1208.13(b). To establish a well-founded fear of future persecution, an applicant
must show a “reasonable probability” of suffering persecution if returned to his
home country. 8 C.F.R. § 1208.13(b)(2)(i)(B). A sufficient fear of persecution is
presumed if the applicant has suffered persecution in the past on account of a
protected ground. Zhu, 493 F.3d at 596. An applicant with a well-founded fear
that he will undergo a forced sterilization procedure has a well-founded fear of
persecution on the basis of his political opinion. Matter of J-S-, 24 I. & N. Dec.
at 534; see also § 1101(a)(42)(A). Moreover, an applicant who does not have a
well-founded fear of being forced to undergo a sterilization procedure can
nonetheless show that he suffered persecution or has a well-founded fear of
future persecution based on resistance to China’s family planning policies.
Matter of J-S-, 24 I. & N. Dec. at 534.
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For an alien, like Lin, who filed an application for relief prior to the
effective date of the REAL ID Act of 2005, his testimony alone and without
corroborating evidence may be sufficient to meet his burden of proof to show
eligibility for asylum, withholding of removal, or CAT protection. Abdel-Masieh,
73 F.3d at 584. However, even a credible applicant may be required to provide
corroborating evidence “where it is reasonable to expect corroborating evidence
for certain alleged facts pertaining to the specifics of an applicant’s claim.” In
re S-M-J-, 21 I. & N. Dec. 722, 725 (BIA 1997); see also Rui Yang v. Holder, 664
F.3d 580, 584-86 (5th Cir. 2011). Where an alien fails to come forward with
reasonably available corroborating evidence, he can be found to have failed to
meet his burden of proof. In re S-M-J-, 21 I. & N. Dec. at 725-26.
Here, Lin’s claim – that he established a well-founded fear of future
persecution – is not supported by sufficient evidence. Specifically, Lin claims
that the BIA erred in finding that he did not meet his burden of proof because
it failed to consider (1) the notice requiring Lin to submit to sterilization
procedures; (2) his testimony; and (3) other evidence that he was targeted for
sterilization for the incident at the family planning office. Lin argues that by
not considering the notice directing him to report for sterilization procedures,
the BIA erred in determining that he would not be subjected to future
persecution. Lin concedes that the notice requiring him to report for
sterilization procedures was marked only for identification purposes in the
original hearing in May 2002 before the IJ, but that the case was remanded
numerous times for the parties to supplement the record. Thus, Lin claims, the
BIA misread the record, which caused the error, and now compels remand for
proper consideration of the evidence. The Government contends, however, that
the notice requiring Lin to report for sterilization procedures was never
properly admitted into evidence and that he had other opportunities on remand
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to supplement the record accordingly. Because he failed to properly submit the
evidence into the record, the Government argues, the BIA did not err in failing
to consider it. Thus, the question becomes whether the notice requiring Lin to
report for sterilization procedures was properly before the BIA for its
consideration.
According to the record, Lin attempted to introduce into evidence a copy
of the notice, a certified translation thereof and a number of other Chinese
documents and their translations, but the Government objected based on
grounds that the documents were not timely submitted.5 The IJ sustained the
Government’s objection, and marked the documents for identification purposes
only.6 The IJ then determined that Lin was not entitled to relief. Lin appealed.
The BIA determined that the case should be remanded to the IJ, and explicitly
stated, “[o]n remand, the parties will be allowed to submit further evidence
regarding the respondent’s application for relief.” Despite this opportunity to
properly submit into evidence the notice requiring Lin to be sterilized and other
documents, Lin’s counsel made no mention of those documents at the IJ hearing
on February 9, 2004.
On June 5, 2007, the IJ held a hearing to address the parties’ arguments
in light of Matter of S-L-L-, supra. At this hearing, Lin’s counsel supplemented
the record with evidence,7 but did not attempt to properly admit into evidence
the notice requiring Lin to be sterilized and other documents. On July 7, 2008,
5
Lin’s counsel attempted to admit the documents during the Government’s
cross-examination of Lin. However, the IJ allowed the Government to proceed with
cross-examination and stated that Lin may raise his issue on redirect examination.
6
While the documents will hereinafter be referred to collectively as the “I.D.
documents,” it is noted that the I.D. document primarily at issue is the notice requiring Lin
to report for sterilization procedures.
7
The evidence admitted here was a copy of the updated Country Reports on China
issued by the United States Department of State.
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the IJ issued its decision denying Lin relief. However, the IJ noted that the
notice requiring Lin to be sterilized and the other documents were not
considered for purposes of its decision. Again, Lin appealed the IJ’s decision.
Remarkably, Lin’s counsel did not take issue with the fact that the IJ had not
considered the notice requiring Lin to be sterilized and the other documents.
On March 18, 2011, the BIA issued its final order dismissing Lin’s appeal. Lin
then petitioned this court for review of the BIA’s decision and finally took issue
with the IJ’s and BIA’s failure to consider the I.D. documents.
The essence of Lin’s claim is his assertion that the BIA did not consider
the notice to report for sterilization that was properly before the court. Lin
states:
At the May 22, 2002 original hearing before the IJ, the IJ only
marked this Notice for ‘identification only’ as it was not filed in a
timely fashion. However, proceedings were remanded several times
for among other things, to afford the parties to supplement the
record. Thus, the Notice was properly in the record . . . .
Interestingly, Lin does not state that he, or anyone else for that matter,
took an affirmative step to properly admit into evidence the notice requiring
him to be sterilized. Indeed, the notice was not admitted into evidence and was
only marked for identification purposes.
Furthermore, we generally review the BIA’s decision “‘procedurally’ to
ensure that the complaining alien has received full and fair consideration of all
circumstances that give rise to his or her claims.” Adjonke v. Mukasey, 255 F.
App’x 914, 915 (5th Cir. 2007) (quoting Abdel-Masieh, 73 F.3d at 585).
However, we do not require that the BIA “address evidentiary minutiae or write
any lengthy exegesis, [but] its decision must reflect meaningful consideration
of the relevant substantial evidence supporting the alien’s claims.” Id.(alternation in orignal).
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Ultimately, Lin failed to properly submit evidence corroborating his claim
that he will face future persecution if returned to China. Lin had ample
opportunity to properly admit the notice, but did nothing. Therefore, the BIA
was not required to consider the documents that were not in evidence.
II. Whether the BIA’s determination that Lin did not suffer past persecution
was supported by substantial evidence.
Lin claims that the BIA improperly rejected his claim that the harm he
suffered in China amounted to past persecution. He contends that the BIA
failed to consider the cumulative effects of: (1) his wife’s abortion and its
psychological effect on him; (2) the electric shock from the chairman’s baton and
brief detention; (3) the fine of 10,000 yen and the deprivation of farming land
that resulted from the failure to pay the fine; (4) being forced into hiding after
the altercation at the family planning office; and (5) being targeted for forced
sterilization.
An applicant may establish past persecution on the basis of the
cumulative effects of multiple incidents even if each incident, considered in
isolation, would not rise to the level of persecution. Eduard v. Ashcroft, 379
F.3d 182, 188 (5th Cir. 2004). However, persecution encompasses only extreme
conduct and “does not include every sort of treatment our society regards as
offensive.” Id. at 187 n.4 (quoting Naqouiko v. INS, 333 F.3d 1012, 1016 (9th
Cir. 2003). Moreover, in an unpublished opinion, we determined that an
applicant who challenged his wife’s forced abortion, was fired from his job,
detained for two days, subjected to coercive interrogation, and some physical
abuse for which he did not seek medical attention did not suffer persecution.
Bing Shun Li v. Holder, 400 F. App’x 854, 856, 858-59 (5th Cir. 2010); see also
Rojas v. I.N.S., 937 F.2d 186, 189-90 (5th Cir. 1991) (affirming denial of asylum
to applicant who was arrested, beaten, tortured, and later fired from his job and
denied other employment by the Government); accord Dao Qing Ye v. Att’y Gen.
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of the United States, 395 F. App’x 844, 848 (3d Cir. 2010) (rejecting applicant’s
claim that cumulative impact of being fined, detained, beaten, and having his
property seized after wife was sterilized against her will rose to the level of
persecution).
In this case, the cumulative effect of the incidents surrounding Lin’s wife’s
forced abortion does not amount persecution. Lin was shocked, but did not
receive medical attention. He was detained, but only for three to four minutes.
Lin’s family was fined and their failure to pay resulted in the loss of their
farming land, but Lin did not testify or explain in his asylum application how
this was an economic hardship or the impact that the loss of farming had on his
family. Lin could have established past persecution to the extent that he was
threatened with forced sterilization. Zhu, 493 F.3d at 600. However, because
the BIA required him to corroborate this claim and he did not, Lin cannot
establish that this threat rose to the level of past persecution. Thus, Lin failed
to carry his burden of establishing past persecution from the cumulative effect
of the above incidents.
CONCLUSION
For the forgoing reasons, we AFFIRM the decision of the BIA.
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