Filed: May 19, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 5-19-2004 Wang v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 03-3057 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Wang v. Atty Gen USA" (2004). 2004 Decisions. Paper 656. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/656 This decision is brought to you for free and open access by the Opinions of the Uni
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 5-19-2004 Wang v. Atty Gen USA Precedential or Non-Precedential: Precedential Docket No. 03-3057 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Wang v. Atty Gen USA" (2004). 2004 Decisions. Paper 656. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/656 This decision is brought to you for free and open access by the Opinions of the Unit..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
5-19-2004
Wang v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 03-3057
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Wang v. Atty Gen USA" (2004). 2004 Decisions. Paper 656.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/656
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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PRECEDENTIAL Peter D. Keisler
Assistant Attorney General
UNITED STATES COURT OF Civil Division
APPEALS FOR THE THIRD CIRCUIT David V. Bernal
Assistant Director
Office of Immigration Litigation
NO. 03-3057 M. Jocelyn Lopez Wright
Senior Litigation Counsel
Office of Immigration Litigation
NEN YING WANG, U.S. Department of Justice
Washington, DC 20044
Petitioner
Attorneys for Respondent
v.
JOHN ASHCROFT, Attorney General OPINION OF THE COURT
of the United States; JAMES ZIGLAR,
Commissioner, U.S. Immigration and
Naturalization Service,
SLOVITER, Circuit Judge.
Respondents Petitioner Nen Ying Wang, a
citizen of China, seeks review of the order
of the Board of Immigration (BIA)
Petition for Review of an Order vacating the decision of the Immigration
of the Board of Immigration Appeals Judge (IJ) that had granted Wang’s
(A78-420-250) application for withholding of removal
under the Convention Against Torture
(CAT) and section 2242 of the Foreign
Submitted Under Third Circuit LAR Affairs Reform and Restructuring Act of
34.1(a) May 3, 2004 1998, Pub. L. No. 105-277, 112 Stat. 2681,
2681-822 (1998) (FARRA). Wang
Before: SLOVITER, FUENTES and contends that the BIA violated FARRA’s
BECKER, Circuit Judges imple men ting regu lations when it
undertook de novo review of his case,
(Filed: May 19, 2004) rather than reviewing it for clear error, and
failed to defer to the IJ’s factual
determination that Wang was more likely
Joseph C. Hohenstein than not to face torture if returned to
Nationalities Service Center China. Wang seeks reversal of the BIA’s
Philadelphia, PA 19107 decision or a remand to the BIA with
instructions regarding the proper standard
Attorney for Petitioner of review. For the reasons set forth below,
we will deny the Petition for Review. INA § 24 2 (b)(4)(B), 8 U.S .C.
§1252(b)(4)(B).
I.
Wang contends that the BIA
Wang came to the United States in
committed error when it undertook a de
2000 at the age of sixteen without a valid
novo review of the record because 8
visa or entry documents. The Immigration
C.F.R. section 1003.1(d)(3)(1) prohibits
and Naturalization Service (I NS)
the BIA from engaging in a “de novo
immediately detained him at Kennedy
review of findings of fact determined by
Airport upon arrival because he presented
an immigration judge” and directs that the
a passport that was not lawfully issued to
BIA shall only review the IJ’s findings for
him. The INS commenced removal
clear error. 8 C.F.R. § 1003.1(d)(3)(1).
proceedings and placed him in a juvenile
However, section 1003.1(d)(3)(1), on
detention center. Although Wang
which Wang relies, does not apply to
conceded removability, in accordance with
“appeals filed before September 25, 2002.”
8 C.F.R. section 1208.16 (c)(2) (2004),
67 Fed. Reg. at 54,905 (codified at 8
Wang sought protection under the CAT on
C.F.R. § 1003.3(f)). Because the INS filed
the ground that it was “more likely than
its appeal with the BIA on May 17, 2001,
not” that he would be tortured by the
more than one year before the September
Chinese government if removed to China
25, 2002 deadline, section 1003.1(d)(3)(1)
because he left China illegally. On May
is inapplicable in this case. The BIA thus
15, 2001, after an evidentiary hearing, the
did not err in conducting a de novo review.
IJ granted Wang’s request for withholding
of removal pursuant to the CAT. On June Wang argues in the alternative that
16, 2003, the BIA vacated the IJ’s order we should eschew the traditional
and ordered Wang to be removed to China. substantial-evidence standard, bypass the
Wang timely filed this Petition for Review. BIA’s decision, and review the IJ’s
decision. Wang urges us to do so on the
II.
grounds that the BIA allegedly
We have jurisdiction to review the misapprehended the proper burdens of
BIA’s final order of removal under INA proof and that its review of the record was
Section 242, 8 U.S.C. § 1252, and the “inadequate and cursory” as compared to
BIA’s denial of Wang’s claim for CAT the IJ’s more “extensive and well-
protection under FARRA §§ 2242(b), (d). reasoned” decision in his favor. Pet’r.
We review the BIA’s legal determinations Reply Br. at 1-2 n.1. As to the burdens of
de novo, subject to established principles proof, Wang argues that the BIA did not
of deference, Chevron v. Nat. Res. Def. inquire whether W ang was “more likely
Council, 467 U.S. 837, 844 (1984), but than not” to face torture if returned to
defer to the BIA’s factual findings unless China as required under 8 C.F.R. §
“any reasonable adjudicator would be 1208.16(c)(2), but instead employed a
compelled to conclude to the contrary.” more stringent standard of proof that
2
required proof that Wang personally would obtaining from him or her or
have “fall[en] into a category of a third person information
immigrants” who would be imprisoned or a confession, punishing
and/or tortured. A.R. at 3. Wang contends him or her for an act he or
that because there is more than a fifty she or a third person has
percent chance that he would be detained committed or is suspected of
and tortured upon returning to China, ha ving c om mitte d, o r
withholding of removal is mandatory intimidating or coercing him
under the CAT. or her or a third person, or
for any reason based on
At the outset, we reject Wang’s
discrimination of any kind,
contention that the BIA misapplied the
when such pain or suffering
proper burdens of proof. Not once, but
is inflicted by or at the
twice, the BIA stated that Wang bore the
instigation of or with the
burden of “establishing that he will ‘more
consent or acquiescence of a
likely than not’ be tortured” upon his
public official or other
return to China. A.R. at 2 (quoting 8
person acting in an official
C.F.R. § 208.16(c)(2)). As to the
capacity.
comparative “strength” of the IJ’s decision
against the BIA’s decision, the fact that the 8 C.F.R. § 208.18(a)(1). We will sustain
IJ issued a lengthier oral decision than the the BIA’s decision if substantial evidence
BIA’s written decision does not without in the record supports its decision. Zubeda
more provide this court a basis to ignore v. Ashcroft, 333 F.3d 463, 471 (3d Cir.
the BIA’s decision and review the IJ’s 2003).
decision. Because the BIA did not commit
The BIA relied on four sources of
an error of law, we review the BIA’s
information in reaching its conclusion that
decision and its de novo factfinding rather
Wang had not proven that he was more
than the IJ’s decision and its factfinding.
likely than not to face torture upon his
In reviewing the merits of the return to China. First, the State
BIA’s decision, we note that the standard Department’s 2000 Country Report on
for invocation of the CAT is more Chinese Human Rights Practices noted
stringent than the standard for granting that some prisoners within specifically
asylum. The regulations define “torture” identified groups, such as political
as: dissidents, protes tors, Fa lun Gong
supporters, female migrant workers,
[A]ny act by which severe
Tibetans and other national minorities,
pain or suffering, whether
were subjected to torture. Second, the
physical or mental, is
State Department’s 1998 China Profile of
intentionally inflicted on a
Asylum Claims and Country Conditions
person for such purposes as
reported that returning illegal immigrants
3
were generally fined between $600 and Critically, Wang has failed to explain why
$6,000 and many of these persons are he expects that he would be more likely
subjected to lengthy detention or “re- than not to fall within the categories of
education,” but made no reference to prisoners identified by the State
torture. Third, an excerpt of Ko-Lin Department who would be subjected to
Chin’s 1999 book, Smuggled Chinese, torture.
which was submitted by Wang, stated that
Wang argues that the 2000 Report
second-time illegal immigrants may be
provides a non-exhaustive list of persons
sentenced to a one year prison sentence in
who might be tortured and should not be
an executive or administrative prison. See
read as an exclusive list. However, he
also A.R. at 221 (2000 State Department
fails to provide any objective evidence
Country Report). Lastly, the Canadian
why he, as a first-time illegal immigrant,
Embassy’s Canadian Refugee Board
would be more likely than not to be treated
Report recounted interviews with returning
similarly. Although the BIA noted that the
illegal immigrants to Changle, Fujian
2000 Report stated that returning illegal
Province, where Wang would be returned,
immigrants may face fines and that
in which the immigrants stated that they
second-time illegal immigrants or political
had only been detained two days and the
dissidents may face re-education or labor
Canadian officials concluded that the
camps, Wang has provided no evidence –
“[m]uch touted policies of prison
as is his burden of proof – to establish that
sentences and extensive reeducation
he personally would be more likely than
programs are apparently mostly not
not to be tortured upon return.
implemented” in the Fujian Province.
A.R. at 369. Wang suggests that the BIA should
have assumed first-time returning
Wang argues that he proved that he
emigrants should have been included
was more likely than not to face torture
within the list of groups likely to be
based on the 1998 and 2000 State
tortured because of the difficulty of
Department Reports regarding China’s
monitoring human rights violations in
general violation of the human rights of its
China. Such an assumption would provide
prisoners and its specific policy of forcing
automatic CAT protection to all persons
returning illegal immigrants to pay fines
returned to China. While we certainly do
from $600 to $6,000 and/or face detention.
not intend to suggest our approval of a
The requirement to pay a fine does not fit
practice in China of subjecting returning
within the definition of “torture.”
emigrants to prosecution and subsequent
Although Wang also states that returning
punishment, if existent, we are not in a
illegal immigrants without the means to
position to express a view on this matter.
pay excessive fines are sometimes
Lacking a congressional directive to grant
detained and tortured, he has not submitted
the CAT claims from all Chinese
any evidence in support of that contention.
immigrants who allege the possibility of
4
detention or imprisonment upon their
removal to China, there is no reason for
the BIA or this court to adopt such a rule.
In addition, Petitioner takes issue
with the BIA’s reliance on the Canadian
Embassy’s Canadian Refugee Board
Report, in which Canadian officials
concluded that the “[m]uch touted policies
of prison sentences and extensive
reeducation programs are apparently
mostly not implemented” in the Fujian
Province. A.R. at 369. Wang contends
that this report was unreliable because the
Chinese government approved the
interviews and likely manipulated the
information to which the researchers were
given access. Although the BIA’s reliance
on this state-sanctioned report may be
questionable, we find that the BIA’s
decision is sufficiently substantiated by the
1998 and 2000 State Department Reports
and therefore need not address the
reliability of the Canadian Report.
III.
We conclude that the record
evidence substantially supports the BIA’s
judgment and thus we will deny the
Petition for Review.
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