Jiannong Jiang v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [09-60483 Affirmed ] Judge: CDK , Judge: WG , Judge: WED Mandate pull date is 12/27/2010 [09-60483]

Jiannong Jiang v. Eric ase: 09-60483 C Holder, Jr.

Document: 00511282333 Page: 1 Date Filed: 11/02/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 2, 2010 N o . 09-60483 Lyle W. Cayce Clerk

J I A N N O N G JIANG, P e titio n e r v. E R I C HOLDER, Jr., UNITED STATES ATTORNEY GENERAL, R espon dent

P e t itio n for Review of a Final Order o f the Board of Immigration Appeals B I A No. A098 215 496

B e fo r e KING, GARWOOD, and DAVIS, Circuit Judges. P E R CURIAM:* J ia n n o n g Jiang ("Petitioner") petitions for review of a final order of the B o a r d of Immigration Appeals ("BIA") dismissing his appeal of an order by the im m ig r a t io n judge ("IJ") denying his application for asylum. For the following r e a s o n s , the petition is DENIED. I. J ia n g is a native and citizen of China who was apprehended while being s m u g g le d into the United States in 2004. He initially stated that he came to the
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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No. 09-60483 U n ite d States to earn more money and that he feared being returned to China b e c a u s e he and his parents owed a lot of money to the smugglers. He later s t a t e d that he left China because he had no work at home and that he feared r e t u r n in g because he would be laughed at, he might be put in jail, and he would b e in debt to the smugglers. In subsequent interviews, Petitioner stated that his v illa g e sometimes imposed high taxes and sometimes police beat the citizens. He stated that once he was arrested in his home for gambling and given a fine. Jiang further stated that he was afraid to return to China because he could not a ffo r d the taxes, he would be fined, and he might be punished for leaving the c o u n t r y illegally. The interviewing officer referred the case for further review. R e m o v a l proceedings were initiated against Jiang. He admitted

r e m o v a b ilit y but requested asylum, withholding of removal, and protection u n d e r the Convention Against Torture ("CAT"). His written application stated t h a t he was seeking relief based on his political opinion and under CAT. In his w r it t e n application Jiang alleged that his girlfriend had been forced to undergo a n abortion and that his mother had been beaten to death. He asserted his fear t h a t Chinese officials had been looking for him and going to his mother's house. In his written statement, Petitioner alleged that in January 2004 he was c o n fr o n te d by "cadres" of the village committee who demanded that he pay an u n r e a s o n a b le fee, which he refused to pay. The next day, the officials went to h is home, punched his mother, and said that Jiang was cohabiting illegally and t h a t they would return. In February 2004, Jiang's girlfriend told him she was p r e g n a n t. In May 2004, several family planning officials went to Jiang's home, k ic k e d in his door, and attempted to seize his girlfriend. His mother attempted t o intervene, at which point she somehow struck her head and suffered a brain in j u r y . The girlfriend was taken to the hospital and given an abortion. After le a r n in g of these events, Jiang became angry and went to the family planning o ffic e to confront the officials. During the confrontation, he pushed one of the 2

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No. 09-60483 o ffic ia ls . The government officials accused him of "beating" the official and told h im he would be sent to prison. Shortly thereafter, Jiang fled. He believes that o ffic ia ls have subsequently visited his home and have told his father that they w ill catch him and put him in prison. Additionally, his family received a fine fr o m the family planning office. At a June 2007 hearing before the IJ, Petitioner testified as to these same fa c ts . With regard to the confrontation with family planning officials, he

t e s t ifie d that he thinks he pushed somebody a little bit. He said that Chinese a u t h o r it ie s intended to charge him with "beating" the official. With respect to h is mother, he testified that she later died of her injuries. Jiang further testified t h a t he did not mention the abortion when he was first apprehended in the U n ite d States because it was a private matter. T h e IJ determined that Jiang testified credibly. But the IJ concluded that P e t i t i o n e r could not establish per se eligibility for asylum on the basis of his g ir lfr ie n d 's abortion under applicable authority. The IJ also determined that P e t it io n e r could not establish past persecution or a well-founded fear of future p e r s e c u t i o n .1 J ia n g appealed to the BIA. The BIA evaluated his appeal under the a p p lic a b le statutes and BIA precedent holding that a person may become eligible fo r asylum if he resists a coercive family planning policy and suffers past p e r s e c u t io n or a has well-founded fear of future persecution as a result of such r e s is t a n c e .2 The BIA concluded that, even if it assumed that Jiang's actions in p u s h in g the family planning official constituted resistance, Jiang had not e s t a b l i s h e d past persecution or a well-founded fear of future persecution as a

The IJ also decided that Jiang had failed to demonstrate eligibility for withholding of removal or for relief under CAT. The BIA also concluded that Petitioner had not meaningfully challenged the denial of withholding of removal and CAT claims, such that he had waived these claims on appeal.
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No. 09-60483 r e s u lt . The BIA determined that Jiang had not shown that he was harmed after t h e incident involving his confrontation with Chinese officials or that his p o t e n t ia l criminal prosecution for assault would be a pretext for persecution on a c c o u n t of his past resistance to China's family planning policies. The BIA fu r t h e r determined that Jiang had not shown that he was formally charged with a crime or that a criminal prosecution would be undertaken without due process. A c c o r d in g ly , the BIA held that Jiang was not eligible for asylum. II. T h e court reviews the BIA's order and the IJ's decision to the extent that it has "some impact on the BIA's decision." Mikhael v. INS, 115 F.3d 299, 302 (5 t h Cir. 1997). "We review factual findings of the BIA and IJ for substantial e v id e n c e , and questions of law de novo." Zhu v. Gonzales, 493 F.3d 588, 594 (5th C ir . 2007). "[W]e generally afford substantial deference to the BIA's

in t e r p r e t a t io n of immigration statutes unless there is `compelling evidence that t h e BIA's interpretation is incorrect.'" Arif v. Mukasey, 509 F.3d 677, 679-80 (5 t h Cir. 2007) (internal citations omitted). On substantial evidence review of fa c t u a l findings, the court reverses "only when the evidence is `so compelling t h a t no reasonable fact finder could fail to find the petitioner statutorily eligible fo r relief.'" Id. (internal citations omitted); Zhu, 493 F.3d at 594 ("we may r e v e r s e a decision on a factual finding only when the evidence compels us to do s o ." ). Accordingly, to reverse a decision of the BIA finding that a petitioner does n o t have a well-founded fear of future persecution, a petitioner "must `show that t h e evidence he presented was so compelling that no reasonable factfinder could fa il to find the requisite fear of persecution.'" Jukic v. I.N.S., 40 F.3d 747, 749 (5 t h Cir. 1994) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)). The same standard applies to reversing the BIA's finding that a petitioner did n o t suffer past persecution. See Chi Lin v. Keisler, 248 F. App'x 565, 566 (5th C ir . 2007) (petitioner could not show that "the evidence he presented was so 4

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No. 09-60483 c o m p e llin g that no reasonable factfinder could fail to find past persecution.") (c it in g Jukic, 40 F.3d at 749). "Nevertheless, we generally also review the BIA's d e c is io n `procedurally' to ensure that the complaining alien has received a full a n d fair consideration of all circumstances that give rise to his or her claims." Abdel-Masieh v. United States I.N.S., 73 F.3d 579, 585 (5th Cir. 1996) (internal c it a t io n omitted). III. O n this petition for review, Jiang argues that the BIA erred in d e t e r m in in g that he is not eligible for asylum because he failed to prove that he s u ffe r e d past persecution or has a well-founded fear of future persecution based o n his resistance to China's family planning policies. To review Petitioner's c la im s , we must consider the statutory framework under which an applicant m a y apply for asylum. A. U n d e r the Immigration and Naturalization Act ("INA"), an alien who a r r iv e s in or is present in the United States may apply for asylum. See 8 U.S.C. § 1158(a)(1) (2010). The Attorney General or the Secretary of Homeland

S e c u r it y has discretion to grant asylum if the alien satisfies his burden of e s t a b lis h in g that he is a "refugee." Id. § 1158(b)(1). The INA defines a "refugee" a s the following: a n y person who is outside any country of such person's nationality o r , in the case of a person having no nationality, is outside any c o u n t r y in which such person last habitually resided, and who is u n a b le or unwilling to return to, and is unable or unwilling to avail h im s e lf or herself of the protection of, that country because of p e r s e c u t io n or a well-founded fear of persecution on account of race, r e l i g i o n , nationality, membership in a particular social group, or p o litic a l opinion. I d . § 1101(a)(42)(A).

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I n 1996 Congress specifically provided that forced abortions and in v o lu n t a r y sterilizations constitute persecution on account of political opinion: a person who has been forced to abort a pregnancy or to undergo in v o lu n ta r y sterilization, or who has been persecuted for failure or r e fu s a l to undergo such a procedure or for other resistance to a c o e r c iv e population control program, shall be deemed to have been p e r s e c u t e d on account of political opinion, and a person who has a w e ll-fo u n d e d fear that he or she will be forced to undergo such a p r o c e d u r e or subject to persecution for such failure, refusal, or r e s is t a n c e shall be deemed to have a well-founded fear of p e r s e c u t io n on account of political opinion. I d . § 1101(a)(42)(B). A fte r Congress enacted 8 U.S.C. § 1101(a)(42)(B), the BIA interpreted this s t a t u t e as providing presumptive refugee status to the spouses of persons forced t o undergo an abortion or an involuntary sterilization. In re C-Y-Z, 21 I. & N. D e c . 915, 919-20 (BIA 1997). This court accorded deference to and endorsed the B IA 's decision to extend per se statutory relief only to spouses ­ and not to u n m a r r ie d partners ­ in a case in which the male petitioner was neither fo r m a lly nor informally married to his "live-in" girlfriend who had been forced t o undergo an abortion in China. Ru-Jian Zhang v. Ashcroft, 395 F.3d 531, 532 (5 t h Cir. 2004) (petitioner "exhibited no legally cognizable `resistance' to China's p o p u la tio n control program ­ merely impregnating one's [live-in] girlfriend is not a lo n e an act of resistance"). Later, the BIA overruled its holding in C-Y-Z to the e x te n t that it permitted per se eligibility for spouses, determining that even a s p o u s e of one forced to undergo an abortion or sterilization is not presumptively e n tit le d to asylum eligibility, but must instead satisfy the other elements of the s t a t u t e by demonstrating that he or she was persecuted or has a well-founded fe a r of future persecution based on "failure or refusal" to undergo such a

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No. 09-60483 p r o c e d u r e or "other resistance" to a population control program. See In Matter o f J-S, 24 I. & N. Dec. 520, 521 (BIA 2008). Thus, we evaluate a claim for asylum by an unmarried male applicant s u c h as Jiang3 whose application for asylum is based on his girlfriend's coerced a b o r tio n to determine the extent of his "other resistance" to China's family p o lic ie s and his purported experience of past persecution or fear of future p e r s e c u tio n . a rg u m en ts. B. W e first consider Jiang's argument that the BIA erred by failing to take in t o account some of his acts of resistance to China's family planning policies. We conclude that the BIA was entitled to disregard Jiang's actions that are ir r e le v a n t to his asylum claim. T h e BIA assumed arguendo that Petitioner had engaged in other r e s is t a n c e to China's coercive family planning policies by pushing the family p l a n n in g official. This assumption is consistent with the general definition of r e s i s t a n c e applied in other cases. See, e.g., Zhuang Ping Lin v. United States A tt'y Gen., 555 F.3d 1310, 1316 (11th Cir. 2009) (punching a family planning o ffic ia l and tearing up the fine was assumed to be "other resistance"); Yi Qiang Y a n g v. United States Att'y Gen., 494 F.3d 1311, 1319 (11th Cir. 2007) (c o n fr o n t in g and getting into physical altercation with planning officials c o n s t it u t e d other resistance). N o t all of Jiang's actions, however, constituted other resistance. For in s t a n c e , Petitioner urges the court to view several of his past actions as c o n s t it u t in g resistance to Chinese government policy, such as his prior arrest for g a m b lin g and his resistance to exorbitant fees and taxes. On this review, these
Jiang has not testified that he was married to his girlfriend, either formally or informally.
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With this framework in mind, we turn to Jiang's particular

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No. 09-60483 a lle g a t io n s of resistance do not appear to be relevant in any way to China's fa m ily planning policies and seem to have no bearing on Petitioner's claim for a s y lu m .4 Accordingly, the BIA's decision to assume that Jiang's confronting and p u s h in g the Chinese official was an act of resistance while disregarding his other ir r e le v a n t acts is supported by substantial evidence. C. W e next turn to Jiang's argument that the BIA erred in deciding that he fa ile d to prove that he had been subjected to past persecution on account of such r e s is t a n c e . An applicant who engages in other resistance to a family planning p o lic y may be eligible for asylum if he can prove that he was subjected to past p e r s e c u t io n . 8 U.S.C. § 1101(a)(42)(B). The BIA held that Petitioner could not s h o w past persecution because he was not harmed after the incident involving h is confrontation with Chinese officials. s u p p o r t e d by substantial evidence. P e r s e c u t io n is defined as "[t]he infliction of suffering or harm, under g o v e r n m e n t sanction, upon persons who differ in a way regarded as offensive (e .g ., race, religion, political opinion, etc.), in a manner condemned by civilized g o v e r n m e n t s ." Mikhael, 115 F.3d at 303 n.2. To qualify as persecution, "there m u s t be some "particularized connection" between the harm and the alien's race, r e lig io n , nationality, membership in a particular social group, or political o p in io n . Faddoul v. I.N.S., 37 F.3d 185, 188 (5th Cir. 1994). With regard to asylum claims based on the coerced abortion or sterilization o f one's spouse, to prove persecution this court generally requires some showing o f a higher degree of actual harm to the applicant himself or herself than Jiang We conclude that this decision is

Moreover, because we previously endorsed the view that an unmarried male petitioner who had been living with his girlfriend when she was forced to have an abortion "exhibited no legally cognizable `resistance'" to China's population control program, Zhang, 395 F.3d at 532, Jiang's co-habitation with his girlfriend and conceiving with her do not constitute legally cognizable acts of resistance.

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No. 09-60483 h a s shown here. For instance, we recently determined that an unmarried a p p lic a n t whose girlfriend had been forced to undergo an abortion could not p r o v e past persecution even though he had been arrested, detained, and beaten a ft e r refusing to tell family planning officials where his girlfriend was located. Chi Lin, 248 F. App'x at 566.5 L ik e w is e , in a very similar case decided in the Eleventh Circuit, the court a ffir m e d the BIA's determination that an asylum applicant who had confronted a family planning official after his girlfriend's forced abortion and punched the o ffic ia l in the face, thereby incurring a fine and the threat of arrest before fle e in g , did not suffer past persecution. Zhuang, 555 F.3d at 1316. The court e m p h a s iz e d that "persecution is an extreme concept, requiring more than a few is o la t e d incidents of verbal harassment or intimidation, and that mere h a r a s s m e n t does not amount to persecution." Id. (internal citations omitted). And in another similar Eleventh Circuit case, the court determined that an a s y lu m applicant could not establish past persecution when the evidence showed t h a t he had a physical altercation with family planning officials, he was s u b p o e n a e d by the local security office, and the family planning officials were lo o k in g for him and trying to arrest him. Yang, 494 F.3d at 1319. T h e same reasoning of these cases applies to the case at hand. In response t o his confronting and pushing the officials, Petitioner was fined and threatened w i t h arrest, just as in the Zhuang case. But, as in that case, Petitioner fled b e fo r e he could suffer any harm amounting to persecution. The only significant fa c t creating any kind of distinction between the present case and this authority is that Petitioner's mother suffered an injury that eventually became fatal when

In that case, we favorably cited opinions of other circuits holding that asylum applicants could not prove past persecution despite showing that they had experienced some harm. Id. (citing multiple circuit opinions including Chen v. Ashcroft, 381 F.3d 221, 233 (3d Cir. 2004) (no past persecution where petitioner had suffered beatings that did not require medical treatment)).

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No. 09-60483 s h e tried to resist the family planning officials' taking the girlfriend into custody. The mother was not injured, however, because of Petitioner's acts of resistance. To the contrary, the mother sustained injuries as a result of her own attempt to r e s is t. Indeed, Petitioner's own acts of resistance ­ his confrontation with

o ffic ia ls and pushing one of the officials ­ did not occur until after his mother w a s injured. Furthermore, there is no allegation that his mother was harmed o r killed intentionally or purposefully in response to Petitioner's resistance. Thus, consistent with the definition of past persecution as applied in our c a s e s and in the persuasive decisions from other circuits cited above, the BIA w a s entitled to find that the Petitioner did not suffer past persecution, given t h a t Petitioner was never harmed, arrested, detained, beaten, or personally s u b je c t e d to any other similar punishment or extreme conduct. Under our d e fe r e n t ia l standard of review, therefore, the BIA's conclusion that Jiang failed t o prove past persecution is supported by substantial evidence, and Jiang has n o t pointed to any evidence so compelling that no reasonable factfinder could fail t o find past persecution. D. W e next consider Jiang's contention that the BIA erred in deciding that he fa ile d to prove that he has a well-founded fear of persecution. An applicant who e n g a g e s in other resistance to a family planning policy may still be eligible for a s y lu m , even though he cannot show past persecution, if he can prove that he h a s a well-founded fear of future persecution. 8 U.S.C. § 1101(a)(42)(B). The B I A held that Petitioner cannot show such a well-founded fear because he c a n n o t establish that his potential criminal prosecution for pushing the official w o u ld be a pretext for persecution on account of his past resistance to China's fa m ily planning policies. This decision is supported by substantial evidence. T o establish a well-founded fear of future persecution, a petitioner must d e m o n s t r a t e "a subjective fear of persecution, and that fear must be objectively 10

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No. 09-60483 r e a s o n a b le ." Chen v. Gonzales, 470 F.3d 1131, 1135 (5th Cir. 2006). Fear of p e r s e c u t io n must be "based on one of the five enumerated factors" in the refugee s t a t u t e . Castillo-Rodriguez v. I.N.S., 929 F.2d 181 (5th Cir. 1991). Punishment fo r a criminal act cannot be considered persecution unless the punishment is " e x c e s s iv e or arbitrary" and is motivated by a statutorily protected ground. Abdel-Masieh, 73 F.3d 579 at 584; see also Tesfamichael v. Gonzales, 469 F.3d 1 0 9 , 117 (5th Cir. 2006) (same). A c c o r d in g ly , Petitioner has not established that he has a well-founded fear o f future persecution. His potential prosecution for pushing the Chinese official c a n n o t constitute future persecution because, as the BIA noted, Jiang has not s h o w e d that the potential prosecution for his admittedly criminal act would be p r e t e x t u a l, or based on a protected ground. Moreover, he has not showed that t h e prosecution would be "arbitrary or excessive," as required. Abdel-Masieh, 73 F .3 d at 584. I n the factually similar Zhuang case, discussed above, the petitioner had p u n c h e d a family planning official and thereby been subjected to a fine and t h r e a ts of imprisonment in China. The court found that the petitioner feared p r o s e c u t io n for "striking a family planning official and leaving China illegally," b u t held that "these are not statutorily protected grounds." Zhuang, 555 F.3d a t 1316-17. Additionally, the court held that prosecution based on a statutorily p r o t e c t e d ground must be "sufficiently extreme to constitute persecution," which is a standard that the petitioner in that case could not meet, despite his credible fe a r that he might be fined or imprisoned for striking the official. Id. We find t h is reasoning persuasive here. F u r t h e r m o r e , although Petitioner has argued that Chinese officials are t r y in g to imprison him for "beating" an official rather than simply "pushing" an o ffic ia l, Jiang has presented no evidence that these different types of actions are t r e a t e d differently under Chinese law, or that "pushing" a government official 11

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No. 09-60483 is not an offense typically resulting in imprisonment under Chinese law. Even m o r e importantly, Jiang has presented no evidence that charges have been filed a g a in s t him. In the absence of formal charges, we cannot conclude that his p o t e n t ia l prosecution for admittedly pushing a Chinese government official w o u ld be pretextual, excessive, or arbitrary.6 I n light of the applicable standard of review, therefore, the BIA's decision t h a t Jiang lacks a well-founded fear of future persecution is supported by s u b s t a n t ia l evidence, and the evidence certainly does not compel reversal on this is s u e . IV . T h e Petitioner having received a full and fair consideration of his claims, t h e BIA correctly determined that he is not eligible for asylum. Accordingly, this p e t it io n for review is DENIED.

Nor can we conclude that this potential prosecution would be carried out without due process of law, even though Jiang has presented a State Department report noting generally that due process is absent in parts of China, because "[g]eneral information on conditions in a country" is only relevant "when it is used to support specific information relating to the alien's well-founded fear of persecution." Ganjour v. I.N.S., 796 F.2d 832, 837 (5th Cir. 1986).

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