Yun Wang v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal in part [998862087-2] Originating case number: A096-336-023 Copies to all parties and the district court/agency. [998921993]. Mailed to: Yun Wang. [12-1659]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1659

YUN WANG,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted:

August 7, 2012

Decided:

August 22, 2012

Before KING, DUNCAN, and FLOYD, Circuit Judges.

Petition dismissed in part and granted in
remanded by unpublished per curiam opinion.

part;

vacated

and

Yun Wang, Petitioner Pro Se.
Lindsay Corliss, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Yun

Wang,

a

native

and

citizen

of

the

People’s

Republic of China, petitions for review of an order of the Board
of Immigration Appeals (“Board”) dismissing her appeal from the
immigration judge’s order denying her applications for asylum,
withholding
Against

of

removal

Torture

and

(“CAT”).

withholding
While

we

under

the

conclude

Convention

that

we

lack

jurisdiction to review the denial of asylum, because the record
compels a finding that Wang established a well founded fear of
persecution, we grant in part the petition for review, vacate
the Board’s order and remand for further proceedings.
We note that we are without jurisdiction to review the
Board’s
timely.
2009).

determination

that

Wang’s

asylum

application

was

not

See Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir.
We further note that Wang fails to make a constitutional

challenge or raise a question of law regarding the denial of
asylum.
While

this

court

does

not

have

jurisdiction

to

consider the denial of Wang’s untimely application for asylum,
we retain jurisdiction to consider the denial of her request for
withholding of removal as this claim is not subject to the oneyear limitation bar.

See 8 C.F.R. § 1208.4(a) (2012).

The

current state of the law regarding this court’s review of a
final

order

denying

withholding
2

of

removal

was

recently

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summarized in Djadjou v. Holder, 662 F.3d 265, 272-74 (4th Cir.
2011).

In order to qualify for withholding of removal, the

alien must show that there is a clear probability of persecution
on account of a protected ground, such as political opinion or
religious belief.

See 8 U.S.C. § 1231(b)(3)(A) (2006); 8 C.F.R.

§ 1208.16(b)(1)(i) (2012).

A showing of past persecution on

account of a protected ground creates a rebuttable presumption
that

the

threat

would

recur

upon

removal.

8

C.F.R.

§ 1208.16(b)(1)(i).
If the alien fails to show past persecution, she can
establish entitlement to relief if she shows that it is more
likely than not that she will be persecuted on account of a
protected

ground

if

§ 1208.16(b)(2) (2012).

removed

to

her

country.

Id.,

This may require some showing that the

alien herself will be singled out for persecution.

See Cruz-

Lopez v. INS, 802 F.2d 1518, 1520-21 (4th Cir. 1986).
also

show

entitlement

to

relief

by

showing

that

She can

there

is

a

pattern or practice of persecution of persons similarly situated
to

her

on

account

of

a

protected

ground

and

that

her

own

inclusion with such persons makes it more likely than not that
her life or freedom would be threatened upon return.
§ 1208.16(b)(2)(i),

(ii).

If

the

withholding of removal is mandatory.

3

alien

meets

her

8 C.F.R.
burden,

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When the Board adopts the immigration judge’s decision
and includes its own reasons for affirming, this court reviews
both decisions.

This court will uphold the Board’s decision

unless it is manifestly contrary to the law and an abuse of
discretion.

The standard of review of the agency’s findings is

narrow

deferential.

and

Factual

findings

supported by substantial evidence.
to

support

a

finding

unless

the

are

affirmed

if

Substantial evidence exists
evidence

was

such

that

any

reasonable adjudicator would have been compelled to conclude to
the contrary.

See Djadjou, 662 F.3d at 272-74 (case citations

omitted).
Because the immigration judge did not make an adverse
credibility
See 8

finding,

it

is

presumed

U.S.C.§ 1158(b)(1)(B)(iii)

Wang

(2006);

testified
Marynenka

credibly.
v.

Holder,

592 F.3d 594, 599-601 & n.* (4th Cir. 2010).
The immigration judge found Wang did not meet the well
founded

fear

standard

necessary

to

establish

eligibility

for

asylum.

The immigration judge properly noted that if Wang could

not establish the well founded fear standard she could also not
establish the more stringent standard necessary to be eligible
for withholding of removal.

The general rule is that one who

does not meet the standard for asylum is necessarily ineligible
for withholding of removal.
(4th Cir. 2010).

Yi Ni v. Holder, 613 F.3d 415, 427

Because the immigration judge found Wang did
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not establish a well founded fear necessary for asylum, she did
not determine whether Wang met the more stringent standard for
withholding of removal.
We conclude that substantial evidence does not support
the immigration judge’s findings and that the record compels a
finding

that

persecution.

Wang

established

a

well

founded

fear

of

Thus, we vacate the Board’s order and remand for a

determination

of

whether

Wang

met

the

requirements

for

withholding of removal.
Initially,
supports

the

finding

we

conclude

that

Wang

that
did

substantial

not

establish

evidence
that

she

suffered past persecution because of her Falun Gong practice.
Her

three-day

detention

and

beating

during

her

interrogation

that did not result in significant injury was insufficient to
compel

a

finding

of

past

persecution.

See

Qiao

Hua

Li

v.

Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (citing Dandan v.
Ashcroft,

339

F.3d

567,

573

(7th

Cir.

2003));

see

also

Kondakova v. Ashcroft, 383 F.3d 792, 797 (8th Cir. 2004). 1

1

We note that the immigration judge found “[t]here was no
medical attention required” after Wang was released from
detention, having suffered a bleeding mouth, swollen face and
bruises on her legs and arms.
(A.R. at 82).
Wang credibly
testified, however, that she did need to go to the doctor after
her release, but could not afford it. (A.R. at 106).

5

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On the other hand, we conclude that Wang established
both the subjective and objective components necessary for the
well founded fear analysis.

“The subjective component can be

met through the presentation of candid, credible, and sincere
testimony demonstrating a genuine fear of persecution. . . .
[It] must have some basis in the reality of the circumstances
and be validated with specific, concrete facts . . . and it
cannot be mere irrational apprehension.”

Qiao Hua Li, 405 F.3d

at 176 (internal quotation marks and citations omitted).

The

objective element requires a showing of specific, concrete facts
that would lead a reasonable person in like circumstances to
fear persecution.

Gandziami–Mickhou v. Gonzales, 445 F.3d 351,

353 (4th Cir. 2006).
To

demonstrate

that

a

fear

is

well

founded,

the

applicant must show that her persecutor is or could become aware
of a disfavored belief or characteristic.
Mukasey, 528 F.3d 135, 142 (2d Cir. 2008).

Hongsheng Leng v.
An alien can do this

by offering evidence that she will be singled out or that there
is

a

pattern

or

practice

situated to the alien.

of

persecuting

persons

similarly

Id.

Because it is presumed that Wang testified credibly,
she established the subjective component of the well founded
fear analysis.

See Zhou v. Gonzales, 437 F.3d 860, 867 (9th

Cir. 2006); Zhao v. Gonzales, 404 F.3d 295, 307 (5th Cir. 2005).
6

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Wang’s credible testimony, supporting affidavits and
objective

evidence

showed

the

following:

Falun

Gong

practice that is labeled a cult and outlawed in China.

is

a

Wang is

a Falun Gong practitioner who was detained for three days and
beaten after being arrested for handing out Falun Gong fliers.
In order to be released from detention, she agreed to spy on
Falun Gong members.

After her release, authorities came to the

family house threatening her mother.

However, Wang was already

in hiding at a relative’s house and stayed there until she left
China for the United States, arriving in April 2004.

In 2008,

her father was detained for two weeks after authorities learned
Wang was practicing Falun Gong in the United States.
this

evidence

shows

that

Wang

is

a

known

We submit

Falun

Gong

practitioner, that she was arrested for handing out Falun Gong
fliers

and

that

authorities.

she

left

China

after

agreeing

to

spy

for

After considering this evidence along with the

objective record evidence, we are compelled to find that Wang
has a well founded fear that she will be targeted when she
returns.
The
testify

as

to

immigration
how

judge

Chinese

noted

authorities

that
were

continued her practice in the United States.

Wang
aware

could

not

that

she

Given that Wang

testified credibly about the reasons for her father’s detention
and her testimony on this issue is supported by her mother’s
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affidavit, we conclude it was speculative and unreasonable for
the

immigration

judge

to

believe

that

Wang

should

know

how

authorities came to learn she practiced Falun Gong in the United
States.
The immigration judge also found it significant that
four years passed between Wang’s detention and 2004 exit from
China and her father’s 2008 detention.
time
still

may

be

relevant

targeting

a

in

considering

particular

While the passage of
whether

alien,

in

authorities

are

instance,

the

this

immigration judge failed to consider that authorities did indeed
target Wang soon after her release from detention and then had
to learn that Wang left China for the United States and that she
continued her practice after she arrived.
The State Department’s 2008 Human Rights Report for
China

and

the

2007

Profile

of

Asylum

Claims

and

Country

Conditions for China show that Falun Gong practitioners, from
high level leaders to private practitioners, stand a risk of
being

persecuted

by

being

sent

to

reeducation

camps, psychiatric hospitals or imprisonment.

through

labor

This is contrary

to the immigration judge’s conclusion that Wang does not have a
well founded fear because she is not a well known Falun Gong
activist

or

organization.

a

person

who

holds

a

position

in

a

Falun

Gong

According to the Human Rights Report, in has been

reported that since 1999, 100,000 Falun Gong practitioners have
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been sentenced to labor camps and 3000 persons have died from
being tortured.

While the objective evidence indicates that the

range of sanctions goes from a fine or loss of employment to
something more severe, such as detention in a labor camp, Wang
was previously detained for handing out Falun Gong fliers, told
authorities

she

would

spy

for

them,

and

then

continued

practicing Falun Gong once she arrived in the United States.

It

is reasonable to assume she might face a more severe sanction if
she were to return to China.

See Shan Zhu Qiu v. Holder, 611

F.3d 403, 408 (7th Cir. 2010) (State Department reports show a
progressive discipline system for Falun Gong practitioners and
that the punishment stops when the alien ceases to practice).
After

taking

into

account

the

entire

record,

we

conclude it compels a finding that Wang established both the
subjective and objective components of a well founded fear of
persecution.
Accordingly, while we dismiss the petition for review
from the denial of asylum as untimely, we grant the petition
from

that

removal.

part

of

the

Board’s

order

denying

withholding

of

We vacate the Board’s order in part and remand for

consideration

of

whether

Wang

9

established

the

stringent

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requirements for withholding of removal. 2

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
PETITION DISMISSED IN PART AND GRANTED IN PART;
VACATED AND REMANDED

2

In her informal brief, Wang does not challenge the denial
of relief under the CAT.
Accordingly, that claim is abandoned
and was not reviewed by this court.
See Ngarurih v. Ashcroft,
371 F.3d 182, 189 n.7 (4th Cir. 2004) (finding that failure to
raise a challenge in an opening brief results in abandonment of
that challenge); Edwards v. City of Goldsboro, 178 F.3d 231, 241
n.6 (4th Cir. 1999) (same).

10