Weng v. Mukasey , 257 F. App'x 983 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0866n.06
Filed: December 19, 2007
Case No. 06-3862
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BI HUA WENG, )
)
Petitioner, )
) ON APPEAL FROM THE
v. ) BOARD OF IMMIGRATION
) APPEALS
MICHAEL B. MUKASEY, Attorney )
General, )
)
Respondent. )
)
_______________________________________ )
BEFORE: MARTIN and BATCHELDER, Circuit Judges; O’MEARA*, District Judge.
ALICE M. BATCHELDER, Circuit Judge. Petitioner Bi Hua Weng (“Weng”) seeks
review of the decision of the Board of Immigration Appeals (“BIA”) summarily affirming the
Immigration Judge’s (“IJ”) denial of Weng’s asylum application, request for withholding of removal,
and relief under the Convention Against Torture (“CAT”). Because we conclude that Weng has
demonstrated both that she suffered past persecution due to China’s one-child policy, and that she
would be subject to future persecution should she return to China, we REVERSE the IJ’s decision
that Weng failed to establish eligibility for asylum based on past persecution and REMAND the
matter to the IJ for further proceedings consistent with this opinion.
*
The Honorable John Corbett O’Meara, United States District Judge for the Eastern District of Michigan, sitting
by designation.
I.
A. FACTUAL BACKGROUND
Weng is a citizen of the People’s Republic of China. She is married and she and her husband
have three sons, one of whom was born in the United States in 2004; her two other sons and her
husband remain in China. Weng entered the United States at Dulles International Airport on
December 21, 2003. Currently, Weng lives in Arkansas with her sister and works at her sister’s
restaurant.
Weng had her first child in June 1994. Later that year, Weng became pregnant with her
second child in violation of China’s one-child policy. In order to have that child, Weng had to send
her first child to live with relatives and she had to bribe an agent of the local “family planning”
division of the Chinese government. After the second child was born, the Chinese government
forced Weng to have an intrauterine device (“IUD”) implanted for birth control purposes. Because
Weng was seriously anemic, the IUD caused substantial bleeding and other medical complications.
Several years later, after continued complications, Weng had to have the IUD surgically removed.
Doctors determined that she could not sustain another IUD at that time and informed her that she had
to use contraception if she engaged in any further sexual activity. Weng claims that the
contraception failed, and she became pregnant again in May 2003.
Knowing that the Chinese government would force her to abort the third child, Weng decided
to flee. She initially went into hiding in China, living with friends in order to avoid the
governmentally mandated periodic gynecological exams to determine if a woman is pregnant. Then,
after a short time in hiding she began a two-month trek that would eventually bring her to the United
States.
2
On October 15, 2004, a “snakehead”1 took Weng to a mountainous area, where she stayed
for two days. The snakehead then put Weng on a plane, and she began a journey that included
several countries — Weng does not know which ones — where she stayed for varying periods of
time. It is unclear whether Weng used her own Chinese passport or a different passport for the initial
stops, but it appears that she used a forged Japanese passport to enter the United Kingdom, and,
ultimately, the United States. Weng gave birth to her third son, Frank, in New York on March 5,
2004. Frank currently lives in New York with Weng’s relatives. Weng indicated that, if she must
go back to China, Frank would stay in New York with her relatives.
Weng claims that in September 2003, after she went into hiding, village birth control officials
went to her house inquiring as to why she had missed her regularly scheduled pregnancy exams. The
officials told Weng’s husband that the Chinese government would punish Weng if she did not appear
for an exam within two months. Weng’s husband and second son then fled, and when the birth
control officials returned and found Weng’s house empty, they tracked down Weng’s mother. On
February 5, 2004, the birth control officials informed Weng’s mother that they were going to lock
Weng’s house to prevent anyone from accessing it and that they would subject Weng to the “harshest
punishment” if she did not attend her pregnancy exam. Weng established these visits and the locking
of her house through documents and photographs.
Weng also claims that she is a Christian and that, in China, she belonged to an “underground”
church, i.e., a church the Chinese government has not sanctioned and whose congregation meets in
secret. Weng claims that because of her membership in this church, police officials seized her,
1
The snakeheads are a Chinese gang that smuggles people to other countries, often the United States and the
United Kingdom. W eng’s uncle paid the snakeheads approximately $50,000 to get W eng to the United States.
3
interrogated her, shocked her with a baton and slapped her in an attempt to get her to confess to
being a member of the underground church, and held her prisoner for 30 hours in September 2002.
Her application for asylum, however, does not reference religious persecution, and states that she
had never been arrested, imprisoned, or interrogated. Weng presented these issues for the first time
in a prepared statement she presented before the IJ.
B. PROCEDURAL BACKGROUND
On January 31, 2005, Weng appeared before the IJ on her application for asylum,
withholding of removal, and relief under the CAT. The IJ denied Weng’s application, finding that
she was not credible and not eligible for asylum or for any other form of relief. The BIA summarily
adopted and affirmed the IJ’s decision. Weng then filed a timely petition for review in this Court,
contending that the BIA abused its discretion in affirming the IJ’s denial of her application. We have
jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) which provides for judicial review of all final
immigration removal orders.
II. ASYLUM
When “the [BIA] adopts the decision of the IJ in lieu of issuing its own opinion, we review
the IJ’s decision as the final agency decision.” Denko v. INS, 351 F.3d 717, 726 (6th Cir. 2003); see
also 8 C.F.R. § 1003.1(e)(4)(ii). The Attorney General has delegated authority to the IJ to determine
if an alien qualifies as a refugee. Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004) (citing 8 U.S.C.
§ 1158(a) & (b)). An IJ fielding a request for asylum must make a two-step inquiry, deciding: (1)
whether the applicant qualifies as a refugee as defined in 8 U.S.C. § 1101(a)(42); and (2) if so,
whether the applicant merits the IJ’s exercising discretion on his or her behalf. Id. (citing Ouda v.
INS, 324 F.3d 445, 451 (6th Cir. 2003)).
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We review an IJ’s finding concerning whether an alien qualifies as a refugee under the
substantial evidence test. Ramani v. Ashcroft, 378 F.3d 554, 558 (6th Cir. 2004); see also
Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir. 1998) (citing INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992)). A refugee is defined as “an alien who is unable or unwilling to return to his 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.’” Elias-Zacarias, 502 U.S.
at 558 (quoting 8 U.S.C. § 1101(a)(42)(A)). Weng bears the burden of demonstrating that she is a
refugee. 8 C.F.R. § 208.13(a).
As an applicant for asylum, Weng must prove that she has suffered past persecution or has
a well-founded fear of future persecution should she return to China. Yu, 364 F.3d at 703; see also
Perkovic v. INS, 33 F.3d 615, 620 (6th Cir. 1994). If she satisfies her burden of establishing past
persecution, she is entitled to a rebuttable presumption that she has a well-founded fear of future
persecution. See Mikhailevitch, 146 F.3d at 389. Weng’s testimony, if credible, may be sufficient
to meet her burden of proof without corroboration. 8 C.F.R. §§ 208.13(a), 208.16(b). “Accordingly,
a credibility determination forms the initial consideration in an IJ’s asylum claims analysis.”
Mapouya v. Gonzales, 487 F.3d 396, 406 (6th Cir. 2007) (internal citations omitted).
An IJ’s credibility determinations are considered findings of fact, which we also review under
the substantial evidence test. Yu, 364 F.3d at 703. We deem factual findings “conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
Thus, we may not reverse the IJ or BIA simply because we would have decided the matter
differently. Mikhailevitch, 146 F.3d at 388. We may reverse only if the petitioner’s evidence
compels a conclusion contrary to that of the IJ or BIA. Elias-Zacarias, 502 U.S. at 483-84 (“[T]o
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obtain judicial reversal of the BIA’s determination, [the petitioner] must show that the evidence he
presented was so compelling that no reasonable finder of fact could fail to find” in the petitioner’s
favor.).
We afford substantial deference to an adverse credibility finding on issues that go to the heart
of the applicant’s claims. Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004). In the case at bar, Weng
asserts two separate grounds for asylum. First, she seeks asylum based on religious persecution.
Second, she seeks asylum based on her fear that the Chinese birth control officials will forcibly
sterilize her if she returns. The IJ found that Weng’s claims of persecution were not credible as to
either ground.
We turn first to Weng’s claim that she was subjected to past persecution. There is no specific
definition of persecution in immigration law. Mikhailevitch, 146 F.3d at 389. We have held that
persecution “requires more than a few isolated incidents of verbal harassment or intimidation,
unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.”
Id. at 390. Rather, “persecution is an extreme concept that does not include every sort of treatment
our society regards as offensive.” Ali v. Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004); Cf.
Mikhailevich, 146 F.3d at 389-90.
Weng did not claim religious persecution in her initial asylum application, which she
certified in open court was true and correct, or in her initial interview. Nor did Weng mention on
her asylum application the 30-hour interrogation by Chinese police that she claims was a result of
her religious affiliation. In fact, she denied ever being detained or interrogated. Moreover, on her
asylum application, Weng stated that neither she nor her family belonged to any religious or political
organizations. Additionally, the IJ found that Weng’s use of a false Japanese passport and her two
6
unsuccessful attempts to enter the United States — both prior to her third pregnancy — cast doubt
on her credibility.
We find that the above facts constitute substantial evidence to support the IJ’s adverse
credibility finding regarding past religious persecution. Certainly, whether Weng has been subjected
to persecution based on her religious beliefs goes to the heart of her claim that she is eligible for
asylum on this basis. See Sylla, 388 F.3d at 926. Therefore, Weng has not established that she
suffered past religious persecution, so she is not entitled to the presumption that she has a well-
founded fear of such future persecution.
Weng also seeks asylum because of persecution due to China’s one-child policy.
Specifically, she claims that the IUD insertion constitutes past persecution, and she fears reprisal
from the Chinese government because of her failure to report for her governmentally mandated
pregnancy exam. The IJ did not make any explicit finding with regard to whether Weng had been
subject to past persecution because of China’s one-child policy. We now conclude that the record
demonstrates that she was.
The International Religious Freedom Act of 1998, wholly contained within 8 U.S.C. § 1101,
states:
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 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) (emphasis added); H.R. Rep. No. 104-469, at 174 (1996).
7
The forced implantation of an IUD is highly objectionable, but governmental actions that our
society deems objectionable or offensive do not necessarily rise to the level of persecution. Ali, 366
F.3d at 410; Cf. Mikhailevich, 146 F.3d at 389-90. In that respect, Weng was not treated differently
from the way in which many Chinese women are treated under China’s one child policy and the
forced implantation of an IUD amounts only to generalized persecution. Generalized persecution,
not based on race, religion, nationality, membership in a particular group, or political opinion, does
not qualify an alien for asylum. Perkovic, 33 F.3d at 621.
The documented actions of the village birth control officials, however, amount to
persecution based on political opinion under 8 U.S.C. § 1101(a)(42)(B). After Weng fled, the village
birth control officials threatened her husband and mother,2 saying that they would subject Weng to
the “harshest punishment,” and locked Weng’s house to prevent her family from accessing it. We
conclude that the threatened “harshest punishment” means forced sterilization and severe fines.
Forced sterilization undoubtedly amounts to persecution. 8 U.S.C. § 1101(a)(42)(B). Moreover,
severe economic penalties, including harsh fines, can rise to the level of persecution in extreme
situations. See Berdo v. INS, 432 F.2d 824, 828 (6th Cir. 1970). Thus, we hold that, because of the
ample documentary evidence of the village birth control officials’ actions Weng presented before
the IJ, she has been subject to past persecution under the applicable definition. Because she has
suffered past persecution, we afford Weng the rebuttable presumption that she would be subject to
future persecution should she return to China. See Mikhailevitch, 146 F.3d at 389. Our conclusion
stems from the specific evidence in this case, and not from generalized evidence or reports about the
2
These threats were made in the context of W eng’s failure to appear for mandatory pregnancy examinations,
the purpose of which was to discover and/or terminate any unauthorized pregnancy.
8
implementation of China’s one-child policy in the Fujian province. Contrast Xue Ying Lin v.
Gonzales, 203 Fed. Appx. 704, 708 (6th Cir. 2006) (finding that a fear of persecution is not
objectively reasonable because there is lax enforcement of the one child policy in the Fujian
province).
Our analysis now turns to whether Weng has a well-founded fear of future persecution. The
IJ made the explicit finding that Weng had not demonstrated a well-founded fear of future
persecution. The well-founded fear-of-persecution analysis contains both a subjective and an
objective component. Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004). In order to establish
the subjective component, the applicant must prove that she “actually fears that [she] will be
persecuted upon return to [her] country.” Perkovic, 33 F.3d at 620-21. The objective component,
on the other hand, requires the applicant to establish an “‘objective situation’ under which [her] fear
can be deemed reasonable.” Pilica, 388 F.3d 950. Thus, the subjective component asks only if the
applicant’s fear is genuine — whether she actually fears persecution — and the objective component
evaluates whether that fear is reasonable. Lumaj v. Gonzales, 462 F.3d 574, 578 (6th Cir. 2006)
(“The fear of persecution must be both subjectively genuine and objectively reasonable.”).
Weng fears that if she returns to China she will be persecuted for being a Christian. But
Weng provides virtually no specific basis for her fear of future religious persecution, and we reiterate
that the IJ found that claim not credible. Since “the subjective fear component turns largely upon
the applicant’s own testimony and credibility,” Akhtar v. Gonzales, 406 F.3d 399, 404 (6th Cir.
2005), Weng has not established that her fear of religious persecution is subjectively genuine, and
we need not consider it further.
9
Weng’s fear of persecution by the birth control officials is another matter. Because we found
that she was subject to past persecution, we afford her the rebuttable presumption that she would be
subject to future persecution if she returns to China. See Mikhailevitch, 146 F.3d at 389. The
presumption of persecution can be rebutted if the IJ finds by a preponderance of the evidence that
there has been “a fundamental change in circumstances such that the applicant no longer has a well-
founded fear of future persecution” or if the IJ finds that the applicant could reasonably move to
another part of her country and avoid future persecution. 8 C.F.R. § 208.13(b)(1)(i)(A)-(B); See also
Abay v. Ashcroft, 368 F.3d 634, 637 (6th Cir. 2004).
The IJ reasoned that because Weng had sent her first child to be cared for by relatives and
bribed a family-planning official in order to deliver her second child; had left the second child with
her husband in China and fled to the United States in order to have her third child; and has indicated
that she would leave her third child, a United States citizen, in the United States if she is forced to
return to China, Weng cannot show that the Chinese authorities know that she is in violation of the
one-child policy, and therefore Weng cannot show that she is actually in danger of being forcibly
sterilized should she be sent back. In short, the IJ, held:
As cold as it sounds, the respondent was willing to send one child off in China and
it appears that she is willing to abandon another child in the United States. The
evidence does not exist to prove that the respondent would bring this child with her
to China and so have proof and be shown to be in violation of the family planning
laws of China.
We find the IJ’s conclusions troubling. It is clear from this record that Weng was willing to
“send one child off in China” in order to avoid a forced abortion of her second child, and that
Weng’s fear of forced sterilization stems from the authorities’ knowing of the birth of her second
child, knowing that she had wholly failed to report for the periodic gynecological examinations the
10
government required to ensure that she was not pregnant and could not become so, and threatening
sterilization as a consequence. Weng’s statements in that regard are not refuted anywhere in the
record.
But the IJ also found that “[b]ackground material show [sic] that the Chinese government
continues to enforce the one child policy in Fujian Province with some degree of latitude,” and that
“respondent has not proven that it is more likely than not that she would undergo [forced
sterilization] especially since the family planning officials did not know she was pregnant when she
left China.” It is the purview of the BIA, or the IJ in this instance, to determine the current
conditions prevailing in a particular country. INS v. Ventura, 537 U.S. 12, 16-18 (2002). We can
only overturn such a determination if a rational adjudicator, looking at the record as a whole, would
be compelled to conclude to the contrary. See 8 U.S.C. § 1252(b)(4)(B). Furthermore, we note that
this circuit has held, with regard to this same province in China, but with regard to an alien who had
never been the object of specific threats such as Weng has experienced, that “a rational adjudicator
could consider all of the information available on family planning in Fujian, find that the one
consistent theme is the lax enforcement of any formal policies, and conclude that the probability of
forced sterilization for any Chinese national returning to Fujian is low.” Lin, 203 Fed. Appx. at 708.
There is no evidence to suggest that the situation has changed with regard to Weng. That is,
there is no definitive evidence to suggest that the birth control officials will not harshly punish Weng
for her violations of the one-child policy. On the other hand, although we have found that the one-
child policy is not strictly enforced in the Fujian province, see Lin, 203 Fed. Appx. at 708, the
Second Circuit has found that, in fact, the policy in the Fujian province is just the opposite. See, e.g.,
Shou Yung Guo v. Gonzales, 463 F.3d 109, 113, 115 (2d Cir. 2006) (citing a report by the Fujian
11
Family-Planning Administration stating that women who have children abroad in violation of
China’s one-child policy will “be subject to family planning enforcement upon resettlement in
China.”); Tian Ming Lin v. United States Dep’t of Justice, 468 F.3d 167, 168 (2d Cir. 2006)
(concluding that documents suggest that there may be a policy of forced sterilization in the Fujian
province); Xia Hua dong v. Gonzales, 2007 U.S. App. LEXIS 2363 (2d Cir. 2007). The IJ has not
rebutted the presumption here: the conflicting evidence about the status of enforcement of the one-
child policy in the Fujian province, together with the documentary evidence that Weng presented
specific to her case, compel the conclusion that Weng has a well-founded fear of future persecution.
Therefore, Weng qualifies as a “refugee” under 8 U.S.C. § 1101(a)(42).
The IJ further held that, even if he had found Weng to be fully credible, he would not find
that she warranted an exercise of discretion in her favor. The Attorney General, and through him
the IJ, is entitled to use his discretion, and is not required, to grant asylum to every alien who meets
the definition of refugee. Cardoza-Fonseca, 480 U.S. at 428, fn.5. This discretionary judgment is
“conclusive unless manifestly contrary to the law and an abuse of discretion.” Yu, 364 F.3d at 703
(quoting 8 U.S.C. § 1252(b)(4)(D)). Having concluded that Weng is eligible for asylum, we remand
this matter to the IJ for a specific determination of whether Weng should be granted that
discretionary relief.
III. WITHHOLDING OF REMOVAL
An applicant seeking a withholding of removal has to meet a more stringent burden of proof
than does an applicant for asylum. Mikhailevitch, 146 F.3d at 391 (citing INS v. Cardoza-Fonseca,
480 U.S. 421, 431-32 (1987)). In order to qualify for withholding of removal, Weng must establish
that there is a clear probability the she would be subjected to persecution if she returns to China. Id.
12
(internal citations omitted). We have concluded that substantial evidence supports the IJ’s decision
that Weng is ineligible for asylum because of religious persecution. Therefore, a fortiori, she
“cannot satisfy the more stringent standard for withholding of” removal regarding religious
persecution. Id. On the other hand, we have determined that Weng is eligible for asylum because
of the persecution by the birth control officials. Consequently, on remand the IJ should consider
whether Weng is entitled to withholding of removal based on all the evidence in the record regarding
the application of the one-child policy against Weng.
IV. CONVENTION AGAINST TORTURE
In order to establish entitlement for relief on her CAT claim, Weng must prove “that it is
more likely than not that [she] would be tortured if” removed to China. Singh v. Ashcroft, 398 F.3d
396, 404 (6th Cir. 2005) (citing Pilica, 388 F.3d at 951 (quoting 8 C.F.R. § 208.16(c)(2))). The IJ
found, and we agree, that forced sterilization, under the circumstances of this case, would constitute
torture. We need not decide whether it is more likely than not that Weng would be sterilized if she
returns to China because we have already decided that she is eligible for asylum based on her well-
founded fear of sterilization.
V. CONCLUSION
For the foregoing reasons, we REVERSE the decision of the IJ that Weng failed to establish
eligibility for asylum on the basis of past persecution. We REMAND the matter to the IJ for a
determination of whether Weng is entitled to a discretionary grant of asylum and/or withholding of
removal in light of all the evidence on the record.
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