Filed: May 13, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-13-2008 Cao v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 06-2968 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Cao v. Atty Gen USA" (2008). 2008 Decisions. Paper 1232. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1232 This decision is brought to you for free and open access by the Opinions of the
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 5-13-2008 Cao v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 06-2968 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Cao v. Atty Gen USA" (2008). 2008 Decisions. Paper 1232. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1232 This decision is brought to you for free and open access by the Opinions of the ..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-13-2008
Cao v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2968
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Cao v. Atty Gen USA" (2008). 2008 Decisions. Paper 1232.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1232
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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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No. 06-2968
JIAPENG CAO; JI FEN HUANG;
CARRIE CAO,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review from an Order of the
Board of Immigration Appeals
(INS-1: A98-166-705;
INS-1: A98-166-706;
INS-1: A98-166-707)
Immigration Judge: Hon. R. K. Malloy
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 9, 2008
BEFORE: SMITH, HARDIMAN and COWEN, Circuit Judges
(Filed: May 13, 2008)
OPINION
COWEN, Circuit Judge.
Petitioner, Jiapeng Cao (“Cao”), asks this Court to review the BIA’s finding that
he (along with his wife and daughter who are included on his asylum application), failed
to meet his burden of showing past persecution in China as well as the finding that he
failed to demonstrate a well-founded fear of future persecution if he is returned to China.
For the following reasons, we will deny the petition for review.
I.
In 1989, Cao began attending an underground Christian church while in China. In
April 1994, Cao was at a church gathering at a house when police officers arrived. The
officers arrested Cao. Cao was then required to report to a detention center every day for
three months for several hours. During these sessions at the detention center, Cao was
forced to write confessions with respect to his religious beliefs. He was allowed to go
home after these sessions each day. Cao asserted that the purpose of these sessions was
an attempt to brainwash him with respect to his religion. After three months, Cao was
released from the requirement of attending these sessions. Subsequently, Cao found it
difficult to find a job in China.
In 1995, Cao moved to Trinidad & Tobago. Cao had some family members living
in Trinidad & Tobago. Subsequently, Ji Fen Huang arrived in Trinidad & Tobago in
1997. Cao knew Huang in China because they attended the same church. While in
Trinidad & Tobago, Cao married Huang. In April 1998, they had a daughter, Carrie Cao.
Carrie Cao is a citizen of Trinidad & Tobago. All three were baptized in Trinidad &
Tobago.
Cao worked in, and eventually owned a restaurant in Trinidad & Tobago. He
2
continued to attend a Christian church while in Trinidad & Tobago. Cao asserted that he
was under surveillance by Chinese authorities in Trinidad & Tobago due to his Christian
faith. Specifically, he alleged that Chinese embassy officials would take photos of church
celebrations and display them at the embassy. Cao also asserted that he was robbed
several times. Cao alleged that his family was on a Chinese “watch list.” He argued that
he would be persecuted if his family returned to China. Nevertheless, Cao’s wife and
daughter returned to China at one point to visit his wife’s mother. They remained in
China for twenty days. Additionally, Cao went to the Chinese embassy in Trinidad &
Tobago to renew his passport.
Cao arrived in the United States in 2003. After overstaying his visa, he filed an
application for asylum, withholding of removal and for relief under the Convention
Against Torture (“CAT”) based on his religion.
The IJ did not make an explicit adverse credibility determination at the removal
hearing. Rather, the IJ criticized Cao for failing to have his sister, who lived in New
Jersey, appear at the hearing and corroborate his allegations. Next, the IJ noted that Cao
was allowed to go home everyday during the three-month period he was required to go
the detention center, and that he was not physically harmed by the authorities. The IJ also
stated that Cao was not required to attend these sessions after the three-month period
ended. Furthermore, the IJ explained that Cao’s testimony with respect to Chinese
officials spying on him while in Trinidad & Tobago was only first raised at the removal
hearing. Additionally, the IJ noted that Cao went to the Chinese embassy without
3
incident, and that his wife returned to China to visit her mother also without incident.
Based on these circumstances, the IJ determined that Cao failed to show past persecution
and failed to establish that he would suffer future persecution if he returned to China.
The IJ ordered Cao and his wife returned to China, and their daughter returned to
Trinidad & Tobago.
On appeal to the Board of Immigration Appeals (“BIA”), the BIA stated that Cao
failed to demonstrate past persecution in China. Furthermore, the BIA determined that
Cao failed to demonstrate a well-founded fear of future persecution on account of his
Christian faith if he was returned to China. The BIA specifically noted the fact that his
wife and daughter had returned to China without any problems, and that Cao had renewed
his passport while in Trinidad & Tobago at the Chinese embassy also without incident.
The BIA ordered all of the respondents removed to Trinidad & Tobago. Cao timely filed
a petition for review.
II.
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C.
§ 1252. Where the BIA adopts the findings of the IJ and discusses some of the bases for
the IJ’s decision, we have authority to review the decisions of both the BIA and the IJ.
See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Whether the applicant has met
his burden of establishing eligibility for asylum is a factual determination reviewed under
the substantial evidence standard. See Gao v. Ashcroft,
299 F.3d 266, 272 (3d Cir. 2002).
If substantial evidence supports the decision below, we will affirm “unless any reasonable
4
adjudicator would be compelled to conclude to the contrary” under the circumstances. 8
U.S.C. § 1252(b)(4)(B).
III.
An applicant for asylum has the burden of establishing that he is unable or
unwilling to return to his home country because of past persecution or a well-founded fear
of future persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A). To establish asylum
eligibility based on past persecution, an alien must show that he suffered harm rising to
the level of persecution on account of a statutorily protected ground, and that it was
committed by government forces or forces the government is unwilling to control.
See Gao, 299 F.3d at 272. Nevertheless, if the alien cannot show past persecution, he
may still establish a well-founded fear of future persecution by showing a subjective fear
of persecution, and that a reasonable person in the alien’s circumstances would fear
persecution if returned to the country in question. See Zubeda v. Ashcroft,
333 F.3d 463,
469 (3d Cir. 2003). Persecution is defined as “extreme conduct,” such as “threats to life,
confinement, torture, and economic restrictions so severe that they constitute a threat to
life or freedom.” Fatin v. I.N.S.,
12 F.3d 1233, 1240 (3d Cir. 1993). It “does not include
all treatment that our society regards as unfair, unjust or even unlawful or
unconstitutional.” Ahmed v. Ashcroft,
341 F.3d 214, 217 (3d Cir. 2003) (internal
quotation marks and citation omitted).
In this case, the IJ did not err in concluding that Cao had not suffered past
5
persecution as we have defined that term for these purposes. See Fatin, 12 F.3d at 1240.
Substantial evidence supports the findings that the incidents described by Cao did not rise
to the level of past persecution, and we are not compelled to conclude to the contrary.
Cao makes several arguments in an attempt to show that the IJ and BIA erred with respect
to deciding his past persecution claim. First, Cao asserts that the IJ erred by stating that
without physical harm, Cao was not entitled to asylum. We disagree with Cao’s
assessment of the IJ’s decision. We have previously noted that physical persecution is no
longer a required element to establish persecution. See Li v. Att’y Gen. of United States,
400 F.3d 157, 166 (3d Cir. 2005). Nevertheless, in this case, the IJ did not deny Cao’s
claim of past persecution based solely on his failure to show physical persecution.
Rather, the IJ examined the totality of Cao’s circumstances. The lack of physical
persecution was but one factor considered by the IJ. Second, Cao asserts that the IJ erred
in relying on the fact that Cao was not formally baptized until he arrived in Trinidad &
Tobago, thereby diminishing his asylum claim. However, as previously stated, the IJ did
not make an adverse credibility determination with respect to Cao’s religious beliefs.
Instead, the IJ determined that the incidents described by Cao did not rise to the level of
past persecution.
Substantial evidence in the record also supports the finding that Cao failed to
show a well-founded fear of future persecution if returned to China. Indeed, Cao asserted
that he and his wife were on a Chinese “watch list,” yet his wife and daughter returned to
China and remained there for twenty days without incident. Cao asserts that the BIA
6
erred in relying on this evidence because his fear of persecution based on his religion is
tied to his biological family, as opposed to his marital family. Cao principally relies on
Vente v. Gonzales, 415 F.3d 296 (3d Cir. 2005), to support his position. Cao’s reliance
on Vente is misplaced under these circumstances. In Vente, we stated that the BIA’s
reliance on the fact that Vente’s family members remained in Columbia and that they
have not suffered any harm was misplaced. See
id. at 302. We noted that the petitioner
did not claim persecution on account of kinship ties, nor a fear of persecution on account
of his membership in a particular social group or that his family members were ever
targeted in the same way he was. See
id. To the contrary, with respect to Cao’s claim of
persecution, it is based on his Christian faith. Cao’s wife is Christian. Cao even admitted
during the removal hearing that his wife attended the same underground church while
they both lived in China. Additionally, Cao stated that he believed his wife was on the
same Chinese “watch list” as he was. Therefore, the BIA’s reliance on his wife returning
to China without incident was plainly appropriate under these circumstances.
Furthermore, as noted by the BIA, Cao went to the Chinese embassy in Trinidad &
Tobago to update his passport also without incident. This undercuts Cao’s theory that he
would be persecuted if he returned to China. The BIA’s decision with respect to Cao’s
claim of future persecution was based on substantial evidence, and we are not compelled
to conclude to the contrary.1
1
Because Cao failed to satisfy the standard for asylum, he necessarily fails to meet the
standard for withholding of removal. See Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d
7
III.
For the foregoing reasons, the petition for review is denied.2
Cir. 2003). Cao’s claim for protection under the CAT is also rejected. An applicant is
entitled to withholding of removal under the CAT if he shows that it is more likely than
not that he will be tortured if removed to the proposed country. See 8 C.F.R.
§ 1208.16(c)(2). Based on this record, the decision to deny Cao CAT relief was based on
substantial evidence, and we are not compelled to conclude to the contrary.
2
To the extent that Cao’s claim of persecution in Trinidad & Tobago remains an issue,
the denial of this claim was based on substantial evidence. See, e.g. Fatin, 12 F.3d at
1240 (noting that persecution is an extreme concept that does not encompass all treatment
that is regarded as unfair, unjust or even unlawful or unconstitutional). Additionally, we
note that Cao has withdrawn his claim that the BIA erred in designating Trinidad &
Tobago as the country of removal for all of the Petitioners.
8
