Filed: Jun. 29, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-15885 ELEVENTH CIRCUIT JUNE 29, 2010 Non-Argument Calendar JOHN LEY _ CLERK Agency No. A078-229-163 WEN GUANG PAN, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (June 29, 2010) Before BLACK, MARTIN and FAY, Circuit Judges. PER CURIAM: Wen Guang Pan, a native and citizen of China, has filed a petiti
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-15885 ELEVENTH CIRCUIT JUNE 29, 2010 Non-Argument Calendar JOHN LEY _ CLERK Agency No. A078-229-163 WEN GUANG PAN, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (June 29, 2010) Before BLACK, MARTIN and FAY, Circuit Judges. PER CURIAM: Wen Guang Pan, a native and citizen of China, has filed a petitio..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15885 ELEVENTH CIRCUIT
JUNE 29, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A078-229-163
WEN GUANG PAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 29, 2010)
Before BLACK, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Wen Guang Pan, a native and citizen of China, has filed a petition for review
from the Board of Immigration Appeals’s (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) order denying his claims for asylum and withholding of
removal under the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231
(“INA”). Pan argues that the BIA erred in denying his claims for asylum and
withholding of removal because he established that he experienced past
persecution due to his opposition to China’s coercive population-control policy.
Specifically, Pan contends that the 12,000 yuan fine that family planning officials
levied against him and his wife constituted a severe economic deprivation that rose
to the level of persecution.
Pan also argues that the BIA erred in finding that he did not demonstrate a
well-founded fear of future persecution, because he showed that he had a well-
founded fear of future persecution due to his practice of Falun Gong. Pan contends
that his testimony regarding his practice of Falun Gong, coupled with the
background information that he submitted detailing the Chinese government’s
persecution of Falun Gong practitioners, demonstrated that he has a well-founded
fear of future persecution.
For the reasons set forth below, we deny Pan’s petition.
I.
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Pan entered the United States on or about July 20, 1999, without being
admitted or paroled after inspection by an immigration officer. On June 19, 2000,
Pan filed an application for asylum and withholding of removal based on the
forcible sterilization and forcible abortion suffered by his wife in China. In April
2001, the former Immigration and Naturalization Service (now the Department of
Homeland Security, or “DHS”), served Pan with a notice to appear (“NTA”),
charging him with removability under INA § 212(a)(6)(A)(i), 8 U.S.C.
§ 1182(a)(6)(A)(i), as an alien present in the United States without being admitted
or paroled. At a hearing before an IJ in May 2001, Pan, through his attorney,
conceded removability. The IJ denied Pan’s application in December 2001. Pan
appealed to the BIA from the IJ’s decision and, in 2003, the BIA remanded the
case.
After the BIA remanded Pan’s case, the parties appeared before the IJ on
numerous occasions and, each time, the matter was continued. On July 17, 2008,
Pan appeared before a different IJ, and filed an updated application for asylum and
withholding of removal. In his updated asylum application, Pan asserted that he
had been persecuted on account of his political opinion—namely, his opposition to
China’s family planning policy. Pan explained that his wife, You Jin Chen, lived
in China with their two children. Pursuant to China’s population-control policy,
family planning officials in China had forcibly inserted an intrauterine device
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(“IUD”) into Chen, and, in 1999, had forced her to have an abortion. In addition,
family planning officials had levied a 12,000 yuan fine against Pan and Chen after
the birth of their second child. Shortly after Chen’s forcible abortion, family
planning officials met with Pan, and told him that he would be forcibly sterilized if
he and Chen had another child. Pan promised the officials that he and Chen would
not have any more children. Pan left China later that same year.
Pan supported his asylum application with an affidavit. In this affidavit, Pan
averred that, in August 2008, he began practicing Falun Gong1 in order to improve
his health. Pan feared that, if he were to return to China, the Chinese government
would detain, beat, and interrogate him due to his practice of Falun Gong.
The record included a 2007 report by the U.S. State Department, which
addressed religious freedom in China, stated that the Chinese government
repressed, and officially had banned, the practice of Falun Gong, and that Falun
Gong practitioners faced arrest, detention, imprisonment, and re-education in labor
camps. Membership in the Falun Gong movement was considered to be illegal.
There were credible reports that some Falun Gong practitioners were tortured, and
that some died while in detention. The record also included several news articles,
1
The 2007 U.S. State Department report on religious freedom in China explained that
“Falun Gong is a self-described spiritual movement that blends aspects of Taoism, Buddhism,
and the meditation techniques and physical exercises of qigong (a traditional Chinese exercise
discipline) with the teachings of Falun Gong leader Li Hongzhi.”
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which Pan had submitted in support of his application. These articles reported that
several Chinese citizens had been detained or faced imprisonment due to their
practice of Falun Gong.
The record also contained the U.S. State Department’s 2005 Country Report
on Human Rights Practices in China (“country report”). The country report stated
the following:
Since the government banned the Falun Gong in 1999, the mere belief
in the discipline (even without any public manifestation of its tenets)
has been sufficient grounds for practitioners to receive punishments
ranging from loss of employment to imprisonment. Although the vast
majority of practitioners detained have been released, many were
detained again after release . . . and thousands reportedly remained in
reeducation-through-labor camps. Those identified by the
government as “core leaders” were singled out for particularly harsh
treatment.
In December 2008, Pan, represented by an attorney, appeared at a hearing
before the IJ. At the hearing, Pan testified consistently with his application
regarding Chen’s forcible sterilization and abortion, as well as the fine levied
against him and Chen by family planning officials. Pan further testified that, if he
were to return to China, he would continue to practice Falun Gong. On cross-
examination, Pan conceded that no one in China was aware that he practiced Falun
Gong.
5
The IJ denied relief, finding that Pan’s testimony concerning his practice of
Falun Gong was not credible for a number of reasons. Pan appealed to the BIA
from the IJ’s decision.
The BIA dismissed Pan’s appeal. In its decision, the BIA explained that it
declined to affirm the IJ’s adverse credibility determination. Nevertheless, the BIA
determined that Pan had not demonstrated that he had a reasonable fear of future
persecution, because he had conceded that no one in China was aware that he
practiced Falun Gong. In addition, the BIA determined that Pan had failed to show
that he suffered past persecution, because he did not establish that he and Chen had
been fined due to his manifesting opposition to China’s family planning policy.
The BIA also found that the amount of the fine was not so onerous as to constitute
economic persecution. Accordingly, the BIA concluded that Pan had failed to
show that he was eligible for asylum, and thus necessarily had failed to show that
he was eligible for withholding of removal.
II.
“We review only the BIA’s decision, except to the extent the BIA expressly
adopted the IJ’s reasoning.” Yu v. U.S. Att’y Gen., 568 F.3d 1328, 1330 (11th Cir.
2009). Here, because the BIA issued its own opinion, and did not adopt the IJ’s
opinion, we review only the BIA’s opinion.
Id. We review “all legal issues de
novo.” Zheng v. U.S. Att’y Gen.,
451 F.3d 1287, 1289 (11th Cir. 2006). We
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review factual determinations under the substantial-evidence test, under which we
must affirm if the BIA’s determination is “supported by reasonable, substantial,
and probative evidence on the record considered a whole.” Id. “Under this highly
deferential standard of review, the [BIA’s] decision can be reversed only if the
evidence compels a reasonable fact finder to find otherwise.”
Id. at 1289-90
(quotation omitted).
In addition, the BIA’s determination as to a petitioner’s credibility is
conclusive, unless the record compels a contrary determination. Yang v. U.S. Att’y
Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). Where the BIA does not make a clear
credibility determination, we will accept that the petitioner’s testimony was
credible. Mejia v. U.S. Att’y Gen.,
498 F.3d 1253, 1257 (11th Cir. 2007). Here,
the BIA declined to affirm the IJ’s adverse credibility finding, but did not make its
own determination as to Pan’s credibility. Accordingly, we will treat Pan’s
testimony as credible. See
id.
III.
An alien who arrives in or is present in the United States may apply for
asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General or the
Secretary of the DHS has discretion to grant asylum if the alien meets the INA’s
definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is:
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any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that 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). The asylum applicant carries the burden of proving
statutory “refugee” status. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001).
To establish asylum eligibility, the alien must, with specific and credible
evidence, establish (1) past persecution on account of a statutorily listed factor, or
(2) a “well-founded fear” that the statutorily listed factor will cause future
persecution. 8 C.F.R. § 208.13(a), (b); Rodriguez-Morales v. U.S. Att’y Gen., 488
F.3d 884, 890 (11th Cir. 2007). An alien must demonstrate a nexus between past
or future persecution and a protected activity by showing that the protected ground,
“at least in part,” motivated or would motivate her persecution. Rodriguez-
Morales, 488 F.3d at 890 (holding that an alien must demonstrate a nexus between
her persecution and a protected ground); Tan v. U.S. Att’y Gen.,
446 F.3d 1369,
1375 (11th Cir. 2006) (holding that the alien’s persecution must, at least in part, be
based on a protected ground).
8
The INA recognizes forced abortions and sterilizations as one kind of
persecution that is accorded protection under the Act. See 8 U.S.C.
§ 1101(a)(42)(B); Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319-20 (11th Cir.
2009). Specifically, 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, 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). “The term ‘resistance’ may include expressions of
general opposition, attempts to interfere with enforcement of government policy in
particular cases, and other overt forms of resistance to the requirements of the
family law.” Yu, 568 F.3d at 1334 (quotation omitted).
We have deferred to the Attorney General’s decision in Matter of J-S-, 24
I&N Dec. 520 (AG 2008), in which the Attorney General concluded that the
spouse of an individual who has undergone involuntary sterilization, or a forced
abortion, is not automatically entitled to refugee status on that basis. Yu, 568 F.3d
at 1331-33. “Rather, the person who did not physically undergo the forced
procedure, or is not subject to a well-founded fear of one, must establish actual
persecution for resisting a country’s coercive family planning policy, or a
9
well-founded fear of future persecution for doing so.” Id. at 1333 (quotation
omitted). “In simple terms, persecution, or the fear thereof, must be personally
endured by the applicant.”
Id. Thus, in Yu, we held that the fact that the Chinese
government had sterilized the petitioner’s wife, forced her to undergo an abortion,
and had required the couple to pay a fine due to their violation of the family
planning policy, was insufficient to show that the petitioner personally had
suffered past persecution due to his overt resistance to a coercive population-
control program.
Id. at 1334-35.
When a petitioner fails to “establish a claim of asylum on the merits, he
necessarily fails to establish eligibility for withholding of removal.” Forgue v.
U.S. Att’y Gen., 401 F.3d 1282, 1288 n.4 (11th Cir. 2005).
Here, regardless of whether the 12,000 yuan fine levied against Pan and
Chen was onerous, Pan did not show that this fine was imposed due to his
personal, overt opposition of China’s family planning policy. Pan showed that his
wife forcibly was sterilized and was forced to have an abortion, and that the
Chinese government levied a fine against the couple for their violation of the
family planning policy. He failed to show, however, that he personally manifested
opposition to the family planning policy. Under Yu, this evidence, standing alone,
is insufficient to demonstrate past persecution. Pan does not point to any evidence
indicating that he expressed his disagreement with China’s family planning policy,
10
or that he attempted to interfere with the policy. Moreover, Pan conceded that he
and Chen paid the fine levied against them in full, and that he promised family
planning officials that he and Chen would not have additional children. As a
result, there was evidence showing that Pan did not manifest resistance to China’s
family planning policy. For these reasons, substantial evidence supports the BIA’s
finding that Pan did not demonstrate past persecution based on his opposition to
China’s family planning policy, and substantial evidence also supports the BIA’s
finding that Pan was not eligible for asylum and withholding of removal on this
basis.
IV.
As noted above, a petitioner may demonstrate his eligibility for asylum by
showing that he has a “well-founded fear” that a statutorily listed factor will cause
future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287.
Specifically, the petitioner must show that there “is a reasonable possibility that he
will suffer persecution if removed to his native country,” and that he is “unwilling
to return to his native country because he fears persecution.”
Zheng, 451 F.3d at
1291; 8 C.F.R. § 208.13(b)(2)(i).
“Involvement with Falun Gong in China by itself does not entitle a person to
asylum in the United States.” Zheng, 451 F.3d at 1292. In Zheng, we reasoned
that the petitioner had failed to demonstrate a well-founded fear of future
11
persecution because: (1) he had conceded that he was not a Falun Gong leader; and
(2) the U.S. State Department’s 2002 Country Report on Human Rights Practices
in China showed that, although the Chinese government had continued a “harsh
and comprehensive campaign against Falun Gong,” Falun Gong adherents
generally were released from detention, and the harshest punishments were
reserved for the movement’s “core leaders.” Id. at 1291-92.
Substantial evidence supports the BIA’s determination that Pan did not
demonstrate a well-founded fear of future persecution due to his practice of Falun
Gong. Accepting Pan’s testimony as credible, he showed only that he began
practicing Falun Gong in August 2008, after he arrived in the United States. He
conceded that no one in China was aware that he practiced Falun Gong. Because
Pan began practicing Falun Gong only four months before the final merits hearing
in this case, and no one in China was aware that Pan practiced Falun Gong, the
record supports an inference that Pan was not a leader in the Falun Gong
movement. Accordingly, like the petitioner in Zheng, Pan has shown only that he
practices Falun Gong.
Moreover, while the record in this case shows that Falun Gong practitioners
in China face detention, imprisonment, beatings, and, in some cases, torture, the
record also shows that most Falun Gong practitioners are released from detention,
and that the harshest punishment is reserved for Falun Gong leaders. For this
12
reason, as well as the fact that Pan conceded that no one in China was aware that
he practiced Falun Gong, this case is not materially distinguishable from our
decision in Zheng. As a result, substantial evidence supports the BIA’s
determination that Pan failed to demonstrate his eligibility for asylum and
withholding of removal on this basis.
PETITION DENIED.
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