Bing Li v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [09-60551 Affirmed ] Judge: CDK , Judge: WG , Judge: WED Mandate pull date is 12/27/2010 [09-60551]

Bing Li v. Eric Holder, ase: 09-60551 C Jr.

Document: 00511282413 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 . 09-60551 Lyle W. Cayce Clerk

B I N G SHUN LI, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent

P e t itio n for Review of an Order of the Board of Immigration Appeals BIA No. A088 024 782

B e fo r e KING, GARWOOD, and DAVIS, Circuit Judges. P E R CURIAM:* B in g Shun Li ("Petitioner"), a native and citizen of the People's Republic o f China, petitions this court for review of an order of the Board of Immigration A p p e a ls ("BIA") affirming denial by the Immigration Judge ("IJ") of his a p p lic a t io n for withholding of removal.1 The petition is DENIED.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. The IJ and BIA also denied Petitioner's application for relief under the Convention Against Torture ("CAT"). Petitioner does not challenge the denial of CAT relief on this appeal, therefore he has abandoned any such challenge. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
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Case: 09-60551 Document: 00511282413 Page: 2 Date Filed: 11/02/2010

No. 09-60551

I. L i, who initially entered the United States on a business visa in 2000, a p p lie d for withholding of removal based on an abortion that the Chinese a u t h o r it ie s purportedly forced his wife to undergo in 1990. He alleges inter alia t h a t due to his resistance to the abortion that he was fired from his job and d e t a in e d for two days by Chinese officials, during which time he was subjected t o coercive interrogation regarding his wife's whereabouts and some physical a b u s e for which he did not seek medical attention. The IJ denied Petitioner's application, determining that Petitioner was not c r e d ib le because of multiple discrepancies or inconsistencies in his documentary e v id e n c e and his testimony. The BIA decided that the IJ's credibility finding w a s not clearly erroneous, focusing on several of the discrepancies identified by t h e IJ in Petitioner's testimony and documentary evidence.2 Alternatively, the B I A determined that Petitioner failed to prove eligibility for withholding of r e m o v a l because he failed to show past persecution and has no current objective b a s is for fear of future persecution. O n this petition, Li contends that the credibility findings of the IJ and the B I A are unsupported by the record. He also claims that he has put forth s u ffic ie n t evidence of past persecution. II.

Specifically, the BIA addressed three discrepancies or inconsistencies in the Petitioner's documentation and testimony: (1) he testified and his wife provided a statement declaring that she resisted the abortion and that the hospital officials put some kind of fabric over her mouth causing her to lose consciousness, but the hospital records indicate that no anesthesia was used during the procedure; (2) the Petitioner testified that his wife was forced to wear an intrauterine contraceptive device ("IUD") after the birth of her first child in 1981 and that it fell out some time before her becoming pregnant the second time in 1990, but the relevant medical records concerning the insertion of his wife's IUD following the 1990 abortion indicate that she had no medical history of a birth control device; and (3) the hospital records undermine Petitioner's claim that his wife's abortion was involuntary.

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Case: 09-60551 Document: 00511282413 Page: 3 Date Filed: 11/02/2010

No. 09-60551 W e review the BIA's order and also the IJ's decision to the extent that it h a s "some impact on the BIA's decision." Mikhael v. INS, 115 F.3d 299, 302 (5th C ir . 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 (5 t h Cir. 2007). On substantial evidence review, "we may reverse a decision on a factual finding only when the evidence compels us to do so." Id. Additionally, p u r s u a n t to the REAL ID Act of 2005, which applies in this case, "an IJ may rely on any inconsistency or omission in making an adverse credibility determination a s long as the totality of the circumstances establishes that an asylum applicant 3 is not credible." Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2009) (internal q u o t a t io n marks and citation omitted). "We defer therefore to an IJ's credibility d e t e r m in a t io n unless, from the totality of the circumstances, it is plain that no r e a s o n a b le factfinder could make such an adverse credibility ruling." (in t e r n a l quotation marks and citation omitted). III. A. U p o n our review of the record and the totality of the circumstances, we c o n c lu d e that the IJ and BIA's credibility determinations are supported by s u b s t a n t ia l evidence and can withstand this extremely deferential standard of r e v ie w . In particular, we conclude that the BIA reasonably evaluated the Id.

s p e c ific discrepancies in Petitioner's documentation and testimony discussed in t h e BIA's order, and there is no evidence compelling reversal of the adverse c r e d ib ilit y determination on these points. Considering that under applicable p r o v is io n s of the REAL ID Act the BIA and IJ were entitled to rely on any in c o n s is t e n c ie s in Petitioner's evidence to make an adverse credibility finding,
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Petitioner applied for withholding of removal but did not apply for asylum. The two claims are similar, but generally "`[w]ithholding of removal is a higher standard than asylum.'" Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (quoting Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002)).

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Case: 09-60551 Document: 00511282413 Page: 4 Date Filed: 11/02/2010

No. 09-60551 it is plain from the totality of the circumstances that the IJ and BIA's credibility d e t e r m in a t io n s were not unreasonable and do not require reversal. W e note separately, however, that one of the bases for the IJ's adverse c r e d ib ilit y determination, which the BIA did not specifically address, was w it h o u t merit. The IJ found what he deemed to be a conflict between the P e t it io n e r 's medical records and an article on a website called Wikipedia. We a g r e e with those courts that have found Wikipedia to be an unreliable source of in fo r m a t io n . See, e.g., Badasa v. Mukasey, 540 F.3d 909, 910-11 (8th Cir. 2008).4 I n fact, the BIA has previously suggested that Wikipedia is not a sufficiently r e lia b le source. Id. ("The BIA presumably was concerned that Wikipedia is not a sufficiently reliable source on which to rest the determination that an alien a lle g in g a risk of future persecution is not entitled to asylum."). Because the B I A in this case did not endorse or premise its decision on the particular factual fin d in g of the IJ related to the Wikipedia article, and because the other specific d is c r e p a n c ie s discussed at length in the BIA's opinion are sufficient to support t h e adverse credibility determination, the IJ's erroneous reliance on Wikipedia d o e s not warrant reversal here. We discuss this issue separately only to express

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We concur with the many concerns about Wikipedia recited by the Eighth Circuit:

Wikipedia describes itself as `the free encyclopedia that anyone can edit,' urges readers to `[f]ind something that can be improved, whether content, grammar, or formatting, and make it better" . . . Wikipedia's own `overview' explains that `many articles start out by giving one ­ perhaps not particularly evenhanded ­ view of the subject, and it is after a long process of discussion, debate, and argument that they gradually take on a consensus form.' Other articles, the site acknowledges, `may become caught up in a heavily unbalanced viewpoint and can take some time ­ months perhaps ­ to regain a better-balanced consensus. Id. at 910 (internal citations omitted). Other courts have expressed similar, valid concerns. Id. (citing Campbell v. Sec'y of Health and Human Servs., 69 Fed. Cl. 775, 781 (Fed. Cl. 2006) (observing that a review of the Wikipedia website "reveals a pervasive and, for our purposes, disturbing set of disclaimers")).

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Case: 09-60551 Document: 00511282413 Page: 5 Date Filed: 11/02/2010

No. 09-60551 o u r disapproval of the IJ's reliance on Wikipedia and to warn against any im p r o p e r reliance on it or similarly unreliable internet sources in the future. B. F in a lly , we are also persuaded that substantial evidence supports the B I A 's conclusion that Petitioner has failed to prove eligibility for withholding of r e m o v a l by failing to show an objective basis for fear of future persecution if r e t u r n e d to China. We have accorded deference to the BIA's determination that a n applicant is not presumptively eligible for asylum or withholding of removal p u r e ly on the basis of his wife's forced abortion, and to prove eligibility he must s h o w that he has suffered past persecution or has the requisite fear of future p e r s e c u t io n "on account of his resistance to the coercive population control p r o g r a m ." Chen v. Filip, 308 F. App'x 785, 786 (5th Cir. 2009) (citing Matter of J -S , 24 I&N Dec. 520, 542 (BIA 2008); Shi Liang Lin v. U.S. Dep't of Justice, 494 F .3 d 296, 309-10 (2d Cir. 2007)). The standard for showing persecution is higher for withholding of removal t h a n for asylum, and "[t]o be eligible for withholding of removal, an applicant m u s t demonstrate a `clear probability' of persecution upon return." Roy v. A s c h c r o ft, 389 F.3d 132, 138 (5th Cir. 2004) (quoting Faddoul v. I.N.S., 37 F.3d 1 8 5 , 188 (5th Cir. 1994)). "A clear probability means that it is more likely than n o t that the applicant's life or freedom would be threatened by persecution . . . ." Id. "[W]hen an applicant for withholding of removal has suffered past

p e r s e c u t io n , `it shall be presumed that the applicant's life or freedom would be t h r e a te n e d in the future in the country of removal on the basis of the original c la im ." Zhu, 493 F.3d at 596 (quoting 8 C.F.R. § 208.16(b)(1)(I)). But this

p r e s u m p t io n may be rebutted. Id.5 Moreover, "`if the applicant's fear of future
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This presumption may be rebutted if the government can prove by a preponderance of the evidence that "(1) there has been a fundamental change of conditions that removes the threat to the applicant, or (2) the applicant could avoid the threat by relocating to another part of the country." Id. (citing 8 C.F.R. § 208.16(b)(1)(I), (ii)).

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Case: 09-60551 Document: 00511282413 Page: 6 Date Filed: 11/02/2010

No. 09-60551 t h r e a t to life or freedom is unrelated to the past persecution, the applicant bears t h e burden of establishing that it is more likely than not that he or she would s u ffe r such harm,' i.e. that there is a `clear probability' of future harm." Id. (q u o tin g 8 C.F.R. § 208.16(b)(1)(iii); Chen v. Gonzales, 470 F.3d 1131, 1138 (5th C ir . 2006)). Even assuming as true Petitioner's version of the facts relating to his t r e a t m e n t by Chinese officials, Petitioner has not presented evidence of past p e r s e c u t io n . Persecution "does not encompass all treatment that our society r e g a r d s as unfair, unjust or even unlawful or unconstitutional . . . . Persecution m u s t be extreme conduct to qualify for . . . protection." Majd v. Gonzales, 446 F .3 d 590, 595 (5th Cir. 2006). Temporary detainment, some physical abuse not r e q u ir in g medical attention, and being fired from one's job ­ as Petitioner has a lle g e d ­ does not rise to this level of "extreme conduct" required to show p e r s e c u t io n . See Tesfamichael v. Gonzales, 469 F.3d 109, 114 (5th Cir. 2006) (a s y lu m applicant could not show that arrest and one-month detention rose to le v e l of past persecution); Abdel-Masieh v. I.N.S., 73 F.3d 579, 584 (5th Cir. 1 9 9 6 ) (asylum applicant could not show that two arrests, two detentions, and b e a t in g s not characterized as severe rose to level of past persecution); see also C h e n v. Ashcroft, 381 F.3d 221, 233 (3d Cir. 2004) (beatings that did not require m e d ic a l treatment not considered past persecution in asylum case). Thus, the B I A 's determination that Petitioner failed to show past persecution is supported b y substantial evidence. Moreover, even if we were to conclude that the Petitioner experienced past p e r s e c u t io n , we agree with the BIA that Petitioner has no current objective basis fo r fear of future prosecution. The allegedly coerced abortion and Petitioner's t w o -d a y detention occurred approximately twenty years ago. Petitioner has not a lle g e d that he experienced any abuse rising to the level of persecution in the fo llow in g ten years that he resided in China before arriving in the United States. 6

Case: 09-60551 Document: 00511282413 Page: 7 Date Filed: 11/02/2010

No. 09-60551 F u r t h e r m o r e , Petitioner's wife is 59 years old and Petitioner has alleged no in t e n t io n of trying to have another child. Thus, the BIA's conclusion that

P e t it io n e r lacks a current objective basis to fear future persecution upon his r e t u r n to China is supported by more than substantial evidence. And because h e has no objective fear of future persecution at all, much less a current fear that is in any way related to his alleged past persecution, he cannot show a p r o b a b ilit y of future persecution on the basis of the alleged past persecution. See Z h u , 493 F.3d at 496; C.F.R. § 208.16(b)(1)(iii). Failing to show a probability of fu t u r e persecution, Petitioner is not eligible for withholding of removal. See Zhu, 4 9 3 F.3d at 496. Accordingly, this petition for review is DENIED.

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