Fangwen Yang v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [10-60138 Affirmed] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 02/10/2011 [10-60138]

Fangwen Yang v. Eric ase: 10-60138 C Holder, Jr.

Document: 00511327473 Page: 1 Date Filed: 12/20/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-60138 S u m m a r y Calendar December 20, 2010 Lyle W. Cayce Clerk

F A N G W E N YANG, also known as Fang Wen Yang, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A093 408 637

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* P e t itio n e r Fangwen Yang, a citizen of China, petitions for review of the B o a r d of Immigration Appeals' (BIA's) decision denying his application for a s y lu m , withholding of removal, and protection under the Convention Against T o r t u r e (CAT). Yang based his applications on his resistance to China's family p la n n in g policy. A t the merits hearing before the Immigration Judge (IJ), Yang testified t h a t , a month after the birth of their first child in 1998, he and his wife, Lin Xiu
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 10-60138 Document: 00511327473 Page: 2 Date Filed: 12/20/2010 No. 10-60138 X i a , were told by the Chinese government that Xia was required to have an in t r a u t e r in e device (IUD) inserted. Xia had the IUD secretly removed in 2000. After government officials learned that Xia was pregnant, they took her to a h o s p it a l and forced her to have an abortion. When he located Xia at the hospital a ft e r the abortion, Yang cursed the family planning officers, who reacted by b e a t in g him. At some point after the abortion, Xia had another IUD inserted a g a in s t her will. Yang left China thereafter because he opposed its family p la n n in g policy. T h e Attorney General has the discretion to grant asylum to refugees. 8 U .S .C . § 1158(b)(1); Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994). A refugee is a person who is outside his country and unable or unwilling to return because o f persecution or a well-founded fear of persecution and who has demonstrated t h a t "race, religion, nationality, membership in a particular social group, or p o lit ic a l opinion was or will be at least one central reason" for the persecution. § 1158(b)(1)(B)(i); 8 U.S.C. § 1101(a)(42). Additionally, one who has

b e e n persecuted for resistance "to a coercive population control program" is c o n s id e r e d "to have been persecuted on account of political opinion, and a person who has a well founded fear that he" will face "persecution for

s u c h . . . resistance shall be deemed to have a well founded fear of persecution o n account of political opinion." § 1101(a)(42). An applicant's wife's forced a b o r tio n does not make the applicant presumptively eligible for asylum or w i t h h o ld in g of removal, and to prove eligibility he must show that he suffered p e r s e c u t io n or has the requisite fear of future persecution on account of his r e s is t a n c e to a coercive population control program. In re J-S-, 24 I. & N. Dec. 5 2 0 (BIA 2008). T o demonstrate persecution, an applicant must show "that harm or s u ffe r in g will be inflicted on [the applicant] in order to punish him for possessing a belief or characteristic a persecutor sought to overcome." Roy v. Ashcroft, 389 F .3 d 132, 138 (5th Cir. 2004) (internal quotation marks, punctuation, and 2

Case: 10-60138 Document: 00511327473 Page: 3 Date Filed: 12/20/2010 No. 10-60138 c it a t i o n omitted). "The harm or suffering need not be physical, but may take o t h e r forms, such as the deliberate imposition of severe economic disadvantage o r the deprivation of liberty, food, housing, employment or other essentials of life ." Abdel-Masieh v. INS, 73 F.3d 579, 583 (5th Cir. 1996) (internal quotation m a r k s omitted). Persecution must consist of extreme conduct. Majd v.

G o n z a le s , 446 F.3d 590, 595 (5th Cir. 2006). T h e "well-founded fear" requirement has both a subjective and objective c o m p o n e n t . Mikhael v. INS, 115 F.3d 299, 304 (5th Cir. 1997). The applicant m u s t subjectively fear persecution, and that subjective fear must be objectively r e a s o n a b le . Eduard v. Ashcroft, 379 F.3d 182, 189 (5th Cir. 2004). Proof of a w e ll-fo u n d e d fear of persecution requires the petitioner to "show that a r e a s o n a b le person in the same circumstances would fear persecution if d e p o r t e d ." Jukic, 40 F.3d at 749. Because Yang seeks relief based on his p o lit ic a l opinion, he must demonstrate some particularized connection between t h a t opinion and the feared persecution. See Faddoul v. INS, 37 F.3d 185, 188 (5 t h Cir. 1994). "In the context of coercive family planning, the term `resistance' covers a w id e range of circumstances, including expressions of general opposition, a t t e m p t s to interfere with enforcement of government policy in particular cases, a n d other overt forms of resistance to the requirements of the family planning la w ." In re S-L-L, 24 I. & N. Dec. 1, 10 (BIA 2006) (en banc), overruled on other g r o u n d s , In re J-S-, 24 I. & N. Dec. at 521. We give "considerable deference to t h e BIA's interpretation of the legislative scheme it is entrusted to administer." Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007) (internal quotation marks and c it a t io n omitted). T h e BIA determined that even if Yang had demonstrated the requisite r e s is t a n c e , he had not demonstrated past persecution or a well-founded fear of fu t u r e persecution and thus was not entitled to asylum. It also determined that Y a n g had not demonstrated a clear probability that his life or freedom would be 3

Case: 10-60138 Document: 00511327473 Page: 4 Date Filed: 12/20/2010 No. 10-60138 t h r e a te n e d if he returned to China and that he was therefore not entitled to w it h h o ld in g of removal. Additionally, the BIA determined that Yang would not lik e ly face torture if he returned to China. The IJ had made the same

d e t e r m in a t io n s with respect to the claims for withholding of removal and CAT p r o t e c t io n and as an alternative basis for rejecting Yang's asylum claim. E v e n if Yang's confrontation at the hospital constituted the requisite r e s is t a n c e to a coercive family planning policy, there was no proof that he was p e r s e c u t e d or that he has a well-founded fear of persecution because of such r e s is t a n c e . The record fails to show that the authorities' treatment of Yang was s o egregious as to constitute persecution. See Mikhael, 115 F.3d at 304 & n.4. Second, Yang does not show that he would face mistreatment, based on r e s is t a n c e , past or future, if he returns to China; thus, his professed subjective fe a r of persecution is not objectively reasonable. See Eduard, 379 F.3d at 189. An applicant for withholding of removal must show a clear probability that h is life or freedom would be threatened on account of race, religion, nationality, m e m b e r s h ip in a particular social group, or political opinion if he is returned to h is country of origin. Chen v. Gonzales, 470 F.3d 1131, 1138 (5th Cir. 2006). This clear-probability standard requires a showing of "a higher objective lik e lih o o d of persecution than that required" to prevail on an application for a s y lu m . Chen, 470 F.3d at 1138. Because the evidence does not compel the c o n c lu s io n that Yang has satisfied even the lower objective standard for asylum, it necessarily follows that Yang is ineligible for withholding of removal. See id. Y a n g failed to brief his CAT claim and consequently has waived it. See C h a m b e r s v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008). Also, he has failed t o demonstrate that he was substantially prejudiced by any procedural failures; h e has merely shown that he did not agree with the IJ's determinations and, u lt im a te ly , the BIA's conclusions. Yang has thus waived his due process claim. See Chambers, 520 F.3d at 448 n.1. P E T I T I O N DENIED. 4