Hang Wang v. Atty Gen USA

Filing 3010167041

Hang Wang v. Atty Gen USA

Doc. 3010167041

Case: 10-1191

Document: 003110167041

Page: 1

Date Filed: 06/02/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 10-1191 ___________ H A N G WANG, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A088-379-287) I m m ig r a tio n Judge: Honorable Eugene Pugliese ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) J u n e 1, 2010 B e f o re : RENDELL, HARDIMAN and ALDISERT, Circuit Judges (O p in io n filed June 2, 2010 ) _________ O P IN IO N _________ P E R CURIAM H a n g Wang petitions for review of the Board of Immigration Appeals' ("BIA") f in a l order of removal. We will deny the petition.

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Case: 10-1191

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Date Filed: 06/02/2010

I. W a n g is a citizen of the People's Republic of China from Changle City, Tantou T o w n , in Fujian Province. He entered the United States without inspection in 1999, and th e Government charged him as removable on that basis. Wang concedes removability, b u t seeks asylum, statutory withholding of removal, and relief under the Convention A g a in s t Torture. Wang married another Chinese national in the United States, and the c o u p le has two children. Wang fears that, if he returns to China, the Chinese government w ill forcibly sterilize him or impose an oppressive fine for violating Chinese family p l a n n in g policies. W a n g testified before the Immigration Judge ("IJ") and submitted general b ac k g rou n d evidence. He also submitted individualized evidence in the form of: (1) a n o tif ic a tio n purportedly from his home town family planning office stating that " S te riliz a tio n procedures are required after the birth of the second child and there will be a Huge fine (around RMB 10,000-20,000) along with the operation" (A.R. 171); (2) an a f f id a v it from his mother stating that she obtained the document from the family planning o f f ic e (A.R. 174); (3) affidavits from three of Wang's friends living in his home town s ta tin g that they were forcibly sterilized after the birth of their second children (A.R. 1819 1 ); and (4) an affidavit from Wang's wife stating her understanding of the policy and that her father too was forcibly sterilized (A.R. 198). T h e IJ assumed that Wang's testimony was credible (IJ Dec. at 5; A.R. 32), but

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d e n ie d relief, concluding that he had not shown a well-founded fear of persecution either in the form of sterilization or a fine and had not shown a likelihood of torture. The BIA d is m is s e d Wang's appeal essentially for the same reasons. Wang was represented by c o u n s e l before the IJ and BIA, but he petitions for review pro se.1 II. T h e BIA relied in large part on its precedential opinions addressing claims and e v id e n c e similar to those presented by Wang. See In re S-Y-G-, 24 I. & N. Dec. 247 (BIA 2 0 0 7 ); In re J-H-S-, 24 I. & N. Dec. 196 (BIA 2007); In re J-W-S-, 24 I. & N. Dec. 185 (B IA 2007); In re C-C-, 23 I. & N. Dec. 899 (BIA 2006).2 As the BIA explained, it c o n c lu d e d on the basis of much the same background evidence presented by Wang that C h in a does not engage in a pattern or practice of forcible sterilization in Fujian Province o r of Chinese nationals returning with children born in the United States. See, e.g., J-WS -, 24 I. &. N. Dec. at 190-91. Instead, the BIA treats claims such as Wang's on a caseb y-c a se basis to determine whether the alien has "(1) identified the government policy
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Wang filed his petition in the United States Court of Appeals for the Second Circuit, w h ic h transferred it here because the IJ completed proceedings in Newark, New Jersey. See 8 U.S.C. § 1252(b)(2). We have jurisdiction under 8 U.S.C. § 1252(a)(1). "Because th e BIA issued its own decision, we review that decision, and not that of the IJ." Sheriff v . Att'y Gen., 587 F.3d 584, 588 (3d Cir. 2009). "Under the substantial evidence sta n d a rd , the BIA's determinations `must be upheld unless the evidence not only supports a contrary conclusion, but compels it.'" Id. (citations omitted). "`[W]e exercise plenary re v ie w of the BIA's legal determinations, subject to established principles of deference.'" Cospito v. Att'y Gen., 539 F.3d 166, 171 (3d Cir. 2008) (citation omitted). The Second Circuit denied petitions for review of S-Y-G-, J-H-S and J-W-S- in Shao v . Mukasey, 546 F.3d 138 (2d Cir. 2008). 3
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im p lic a te d by the births at issue, (2) established that government officials would view the b irth s as a violation of the policy, and (3) demonstrated a reasonable possibility that g o v e rn m e n t officials would enforce the policy through means of persecution[.]" Shao, 5 4 6 F.3d at 143 (summarizing BIA precedent). B o th the IJ and BIA applied this framework in this case, and the BIA concluded th a t Wang showed neither that he violated the family planning policy of his home p ro v in c e nor that he had a well-founded fear that the consequences of any such violation w o u ld rise to the level of persecutions. Wang did not challenge this framework before th e BIA and does not challenge it on review, so we have no occasion to determine w h e th e r it is permissible (though we note that the Second Circuit has held that it is, see id. a t 156-57, 174). Wang also does not challenge the BIA's assessment of his background e v id e n c e or argue that the BIA failed to consider any evidence that it had not already c o n s id e re d in its precedential opinions. Cf. Zheng v. Att'y Gen., 549 F.3d 260, 268-69, 2 7 0 n.7 (3d Cir. 2008). In s te a d , Wang takes issue with the BIA's assessment of his individualized e v id e n c e and raises what we construe as three arguments. First, the BIA concluded that th e affidavits from Wang's friends do not support his claim because, "[w]hile he claims to k n o w people from China who were forcibly sterilized, since the record does not contain all the underlying facts of these cases, [Wang] has not shown that these procedures were in fact a form of `persecution.'" (BIA Dec. at 2; A.R. 4.) Wang challenges this

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c o n c lu s io n by asking "How can forcible sterilization not be a form of persecution?!" (Petr.'s Br. ¶ 5.) The BIA's conclusion was perhaps inartfully phrased, but its point is v a lid . T h e BIA clearly was aware that forced sterilization constitutes persecution. Its p o in t was that Wang's affidavits do not provide sufficient detail to determine whether the ste riliza tio n s asserted therein were "forced." 8 U.S.C. § 1101(a)(42). The BIA has held th a t to be "forced" within the meaning of the statute means to be threatened with m is tre a tm e n t that itself would constitute persecution, and not merely to bow to coercive p ressu re that does not rise to that level (such as certain economic disincentives). See In re T -Z -, 24 I. & N. Dec. 163, 168-69 (BIA 2007); see also Xia v. Mukasey, 510 F.3d 162, 1 6 6 (2d Cir. 2007) ("The distinction drawn by In re T-Z- between `submission to p ressu re' and `force,' 24 I. & N. Dec. at 169-70, requires evidence as to the pressure ac tually exerted on a particular petitioner."). T h e BIA cited T-Z- in this case for the related proposition that Wang had not s h o w n that any threatened fine would rise to the level of persecution. (BIA Dec. at 3; A .R . 5.) Thus, the BIA evidently concluded that Wang's affidavits did not provide e n o u g h information to determine whether his friends had undergone "forced" steriliza tio n , and consequently whether they supported Wang's claim that he fears " f o rc e d " sterilization himself. Our review of the affidavits confirms that each affiant a s s e rte d merely that he or she was "forced" to become sterilized without stating how.

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(A .R . 181-91.) We cannot say that the BIA was required to conclude that these cursory a n d conclusory affidavits describe actual persecution.3 S e c o n d , the BIA treated as individualized evidence affidavits that Wang submitted f ro m two people who claimed to be forcibly sterilized after returning to China with c h ild re n born in Japan. (A.R. 393, 407-08.) These affidavits, however, were included in W a n g 's background materials and were prepared for a different case. In any event, the B IA did not err in rejecting them. The BIA did so because Wang made no showing reg ard ing the effect of Japanese law. Wang argues that the Chinese government "doesn't c a re " about children's legal status in Japan or the United States and considers them all C h in e se . Again, although the BIA could have explained its rationale more clearly, its p o in t is valid. T h e BIA has concluded that United States-born children generally do not "count" f o r Chinese family planning purposes because the Chinese government, like the United S ta te s government, considers them United States citizens. See J-W-S-, 24 I. & N. Dec. at 1 9 0 -9 1 ; see also Liu v. Att'y Gen., 555 F.3d 145, 150 n.5 (3d Cir. 2009) ("It is significant th a t Chinese officials correctly understand that children born in the United States to C h in e se parents are United States citizens.") Wang presented no evidence that children b o rn in Japan receive the same treatment.

Wang's counsel attempted to elicit greater detail regarding these incidents at Wang's h e a rin g , but Wang did not provide any additional detail and instead merely referred to his f rie n d s ' "letters." (A.R. 84-86.) 6

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F inally, Wang argues that he has a well-founded fear of returning to China in part b ec au se "I clearly violated the family planning laws of my village in China." (Petr.'s Br. ¶ 5.) Wang apparently refers to the family planning notice he claims his mother obtained f ro m their local family planning office. (A.R. 171.) The BIA concluded that this d o c u m e n t was entitled to "limited weight" for several reasons. As the Government a rg u e s, Wang has raised no challenge on review to the BIA's rejection of this document o r to any of its reasons for rejecting it, and thus has waived any such challenge. See Voci v . Gonzales, 409 F.3d 607, 610 n.1 (3d Cir. 2005). We have the discretion to address is s u e s that have been waived. See Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005). We decline to do so here, however, because the notice says nothing about children born in th e United States. Moreover, although it states that sterilization is "required" after the b irth of a second child, it does not indicate that the requirement will be enforced by a c tio n s rising to the level of persecution. See J-W-S-, 24 I. & N. Dec. at 190.4 A c c o rd in g ly, we will deny the petition for review.

Wang's brief includes a caption, which is not followed by any argument, that reads: " T h e [BIA] did not apply all the cases and statutes that were submitted by my previous a tto rn e y in the appellate brief." (Petr.'s Br. ¶ 6.) Wang has not raised any specific a r g u m e n t in this regard. Cognizant of his pro se status, however, we have reviewed the b rie f that his former counsel submitted to the BIA. (A.R. 7-23.) Most of the arguments raised therein assert alleged errors by the IJ that are not relevant in light of the BIA's is s u a n c e of its own opinion, and the remaining arguments provide no basis to disturb the B IA 's ruling. 7

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