NENG LONG WANG, Pеtitioner v. ALBERTO GONZALES, Attorney General of the United States; MICHAEL CHERTOFF, SECRETARY OF DEPARTMENT OF HOMELAND SECURITY, Respondents
No. 04-2656
United States Court of Appeals for the Third Circuit
April 27, 2005
407 F.3d 132
BEFORE: SCIRICA, Chief Judge, and ROTH and GREENBERG, Circuit Judges
PRECEDENTIAL. On Petition for Review of a decision and order of the Board of Immigration Appeals (BIA No. A77-935-836). Argued March 7, 2005.
400 Market Street
Suite 450
Philadelphia, PA 19106
Joseph C. Hohenstein
NATIONALITIES SERVICE CENTER
1300 Spruce Street
Philadelphia, PA 19107
Attorneys for Petitioner
Peter D. Keisler
Assistant Attorney General
Civil Division
Emily Anne Radford
Assistant Director
Keith I. Bernstein (argued)
Attorney
Department of Justice
Civil Division
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
Attorneys for Respondents
GREENBERG, Circuit Judge.
I. FACTUAL AND PROCEDURAL HISTORY
This matter comes on before this court on a petition for review of a decision and order of the Board of Immigration Appeals (“BIA“) dated May 11, 2004, denying petitioner Neng Long Wang (“Wang“) asylum and withholding of removal and ordering his removal to China. We set forth the background of the case in some detail.1
Wang, who was born in China on October 1, 1985, is the older of two children. His sister was born in February 1988. Before his sister was born, Wang‘s parents worked and earned approximately 200-400 yuan per month. At that time the family lived in a house with a bathroom, living room, dining room and kitchen. Wang‘s parents lack formal education and do not speak Mandarin Chinese, the language apparently used in governmental matters.
Though China has a one-child per family policy to control the size of its population, Wang‘s parents were unaware of the policy until after his sister was born, an event leading the Chinese government to fine the family for having a second child. The local government authority sent a notice tо Wang‘s parents informing them of the imposition of a 20,000 yuan fine against them (approximately $2,400.00 as of 2005 exchange rates; 100 times their lowest estimated monthly salary) by reason of the birth of their second child. Wang, however, does not claim that the government imposed the fine on him or that he was responsible for its payment. Wang‘s parents could not afford to pay the fine and thus decided to flee. At that time the family left their village and split up, Wang going to live with his grandmother in one village while the remaining members relocated to another. The family, however, subsequently reunited and returned to its home.
Wang‘s father obtained permission to pay the fine by 1996 on an installment basis. Nevertheless, the government repeatedly subjected the Wang family household to property destruction and harassment because the fine remained unpaid. Thus, from the time of his sister‘s birth in February 1988 until the date of Wang‘s administrative hearing in these proceedings on October 31, 2000, governmental authorities made between ten and sixteen visits seeking payment of the fine. Wang testified, “every time they show up they always keep on asking us why don‘t we pay up the remaining balance and they start destroying, smashing our chairs and furnitures [sic].” AR at 174-75.2 Yet the authorities’ intrusions into the family‘s life had their limitations as neither Wang nor his sister had any trouble attending school, and the authorities never arrested, detained or fined Wang. Accordingly, it is clear that the authorities did not direct their actions at Wang.
Wang‘s father left China in 1992 to earn enough money to pay the fine. For three years, he worked in Argentina and sent money back to China to support his family and to pay the fine incrementally. Nevertheless
In 1996 government authorities presented the family with another notice reflecting the 20,000 yuan fine. This notice did not credit the family with payments already made on the fine. In that same year government officials sterilized Wang‘s mother and “totally destroyed” the family home. Id. at 179. The family, however, was able to recover blankets from the home and subsequently relocated, first to Wang‘s grandmother‘s house and then to a one-room home. The Wangs’ previous residence was comprised of two stories and several rooms.
Wang‘s father later unsuccessfully attempted to leave China a second time in search of work. The family began to rely on an uncle‘s generosity to survive, but the uncle could not provide the family with enough money to continue to pay the fine. Eventually Wang‘s parents opened a snack bar business, but government authorities destroyed the equipment of the business late in 1998 and “startеd laughing on the way out.” Id. at 183, 185-86.
Subsequently, with the help of smugglers, Wang physically arrived in the United States on December 3, 1999, at JFK International Airport where he was detained. Upon his arrival Wang applied for admission to the United States, but the immigration service denied that application and instead instituted administrative removal proceedings against him. The notice to appear served on him charged that he was not in possession of valid entry documents and that it was likely he would become a public charge if admitted. Wang admitted that the entry document charge was valid, but in an effort to prevent removal he applied for asylum, withholding of removal, and protection under the Convention Against Torture.
Wang fears that if he returns to China, the Chinese authorities will arrest him because he left the country illegally and the arrest could lead to the imposition of another 20,000 yuan fine. Because Wang‘s family lacks the ability to pay this amount, Wang fears that he will remain in custody if he returns to China. Wang‘s family hopes that he will be able to live safely in the United States and earn enough money so that the family can pay its debts.
An immigration judge held a hearing on Wang‘s application following which the judgе issued a written decision and order dated November 7, 2000, denying Wang‘s application for asylum but granting his application for withholding of removal. The government appealed the decision and order of the immigration judge to the BIA to the extent it granted Wang‘s request for withholding of removal and Wang cross-appealed to the extent it denied him asylum. The BIA sustained the government‘s appeal and ordered Wang removed to China on June 6, 2003.
Wang timely filed a petition for review of the BIA‘s decision with this court and simultaneously filed a motion with the BIA for reconsideration of its June 6, 2003 decision, arguing that it fаiled to address his cross-appeal. The BIA granted Wang‘s motion for reconsideration and vacated its
Wang filed a timely petition for review of the BIA‘s May 11, 2004 decision on June 10, 2004, with this court. He then moved to withdraw his original petition for review and on July 26, 2004, we granted that motion. At that time we also stayed his removal pending the disposition of these proceedings.
II. JURISDICTION AND STANDARD OF REVIEW
The BIA had jurisdiction in this matter under
Congress has directed us to treat the BIA‘s findings of fact as conclusive “unless any reasonable adjudicator would be compelled to conclude to the contrary.”
We review the BIA‘s attempts to fill gaps in the INA under the Supreme Court‘s direction requiring us to “respect the interpretation of the agency to which Congress has delegated the rеsponsibility for administering the statutory program,” but also under the direction that the courts decide pure questions of statutory construction. INS v. Cardoza-Fonseca, 480 U.S. 421, 446-48 (1987); see Fatin v. INS, 12 F.3d 1233, 1239 (3d Cir. 1993) (quoting the Court‘s statement in Chevron U.S.A., Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984) that “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency‘s answer is based on a permissible construction of the statute“); Chang v. INS, 119 F.3d 1055, 1060 (3d Cir. 1997) (quoting the Supreme Court in Chevron, 467 U.S. at 844, to state that “we will not substitute our own judgment for that of the BIA, but we must also reject any interpretation by the BIA that is ‘arbitrary, capricious, or manifestly contrary to the statute‘“).
III. DISCUSSION
A. Determination framework
Section 208(b) of the INA,
An applicant may establish his refugee status by showing either that he has bеen subject to past persecution or has a well-founded fear of future persecution. The persecution, however, must be “on account of” one of the five statutory bases.
Congress has provided that “a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program” is “deemed to have been persecuted on acсount of political opinion.”
While the decision to grant or deny an applicant asylum is discretionary even if he establishes that he meets the statutory eligibility requirements, the government must grant withholding of removal, with certain exceptions, to an applicant if he demonstrates a “clear probability” that, upon return to his home country, his “life or freedom would be threatened” on account of race, religion, nationality, membership in a particular social group, or political opinion.
Under the Convention Against Torture, an applicant is entitled to withholding of removal if he establishes that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.”
B. The Decisions of the Immigration Judge and the Board of Immigration Appeals
The immigration judge recognized two potential bases for Wang‘s application for asylum. The first basis was that he and his family had suffered past persecution resulting from his parents’ violation of China‘s
The immigration judge found that the Chinese government‘s actions against Wang and his family amounted to persecution “where the respondent‘s mother was forcibly sterilized and where the family‘s home was completely destroyed when his parents were unable to pay the family planning fine.” Id. The immigration judge acknowledged that Wang‘s parents were the government‘s primary targets, but stated that “[t]hese government-sanctioned actions against the respondent’ [sic] parents effectively extended to the respondent, who found himself without a home.” Id. at 136. While the immigration judge was “not prepared to rule that a child may legally take the place of a spouse for all purposes,” the judge did conclude that “there is sufficient evidence in this record to establish that this respondent was directly affected by the Chinese government‘s persecution of his parents and can legally stand in their shoes as one who has been persecuted.” Id.
Nevertheless the immigration judge did not grаnt asylum to Wang because the judge concluded that “sufficient adverse factors” weighed against a discretionary grant of asylum. Id. at 137. Those factors included the circumstance that Wang was not fleeing direct persecution, had attended school, the past persecution was not based on physical harm, and he did not leave China to escape future physical harm. Primarily, however, the immigration judge relied on the fact that Wang‘s family had hired smugglers to transport him to the United States as the discretionary basis for denying his application for asylum. The immigration judge determined that “[b]y granting asylum to otherwise marginally asylum-eligible aliens, such as this young respondent, such results accomplish little more than to reward the smugglers and provide more incentive for other families to put their children into harm‘s way.” Id. at 138.4
Even though the immigration judge‘s reasoning led the judge to deny a grant of asylum, the judge determined that Wang had met the burden of proof for a grant of withholding of removal because he had established a “clear probability” of persecution upon his return to China. Inasmuch as a grant of withholding of removal is not discretionary if the statutory requirements
The government appealed and in a June 6, 2003 decision, the BIA sustained the government‘s appeal. The BIA concluded that Wang failed to establish either past persecution or a well-founded fear of future persecution based on any one of the five statutory grounds for granting asylum. Id. at 64. The BIA dismissed Wang‘s argument regarding his fear of imprisonment upon return to China predicated on his action in leaving the country illegally because hе did not prove that “the exit policy in China constitutes punishment for invidious reasons rather than being a law of general applicability.” Id. at 65. The BIA found that the harm that Wang claimed from past persecution stemming from his parents’ violation of the family planning policies was “too indirect to establish past persecution.” Id. Because the Board found the connection to be too tenuous, it agreed with the government that Wang did not prove his eligibility for asylum protection. Without further discussion, the Board also determined Wang to be ineligible for protection under the Convention Against Tоrture and for withholding of removal.
Wang moved for reconsideration on the basis that the BIA failed to address his cross-appeal in its June 6, 2003 decision. The Board granted Wang‘s motion for reconsideration, vacated its June 6, 2003 decision and order, and entered a new decision and order dated May 11, 2004. Wang‘s petition for review addresses the May 11, 2004 decision and order.
In this second decision and order dated May 11, 2004, the BIA again concluded that Wang failed to establish either past persecution or a well-founded fear of future persecution on the basis of any of the five statutory grоunds for asylum. The BIA stated that Wang could not stand in his parents’ shoes and rely on the persecution they experienced to support his own asylum claim. According to the BIA, “[w]hile the respondent might be eligible as a derivative of a successful asylum application filed by either of his parents arising from their violation of the family planning policies, we do not find that the respondent can demonstrate persecution in his own right on account of the violation or resistence [sic] to family planning policies.” AR Supp. at 6.5 The BIA also repeated its earlier finding that Wang did not prove that China‘s exit control program “constitutes punishment for invidious reasons.” Id. at 6.
In addition to its conclusion that Wang could not stand in the shoes of his parents for asylum purposes, the BIA concluded that “[o]n the record before us, we do not find that [Wang] has adequately established that the past harm he experienced rose to the level of persecution.” Id. The BIA pointed out that Wang was not arrested, detained or fined, and that he had no trouble attending school. Rather, the BIA indicated that, “[p]erhaps the worst effect on him of the actions against his parents was the destruction оf their home, but he testified the family was able to live in a different home that was not as good.” Id. Finally, the BIA denied Wang‘s application for withholding of removal and relief under the Convention Against Torture as it concluded that the record did not establish that if Wang returned to China it is more likely than not that he would be subject to
C. Asylum Eligibility
The crux of an asylum determination is whether an applicant has established that he has suffered from past persecution or has a well-founded fear of future persecution on aсcount of one of the five statutory bases: race; religion; nationality; membership in a particular social group; or political opinion. Here, Wang is seeking asylum based on past persecution on account of political opinion or on account of his membership in a particular social group. While he also contends that he qualifies for asylum by reason of his well-founded fear of persecution based on his violation of China‘s exit-control policy, the evidence in the record does not compel, or even permit, us to disturb the BIA‘s finding rejеcting this contention. Thus, we do not address this point further.
According to Wang he was persecuted because the Chinese government: (1) imposed a fine grossly disproportionate to their income on his parents for violating the family planning policies; (2) engaged in a lengthy pattern of destruction of the Wang family‘s property, including total destruction of the family home; (3) destroyed equipment necessary to the family business; (4) left the family with no choice but to leave their home temporarily to run from the government; (5) caused family separation at several points in time; and (6) refused tо acknowledge the payments the family made towards the family planning fine. We will assume without deciding that these acts amounted to persecution of Wang‘s parents.
Our assumption that the government authorities’ behavior amounted to persecution of Wang‘s parents does not end our inquiry. To satisfy the statute, Wang must have suffered from the persecution and the persecution must have been “on account of” one of the five statutory bases for granting relief. The BIA believed that “the statutory ground on which the Immigration Judge found the respondent to have been persecuted is not entirely clear.” Id. at 5. The BIA explained that “it is not certain whether the Immigration Judge concluded that [Wang] was a victim of past persecution as a member of a particular social group or whether he concluded that [Wang] qualified for asylum and withholding under the laws designed to protect those who violate or resist the family planning as one ‘standing in the shoes’ of such person or persons.” Id. But it then went on to explain that it did not find “the ultimate result in this case [would be] different on either reading of the Immigration Judge‘s decision.” Id.
The BIA concluded that Wang could not stand in the shoes of his parents “where the persecution is claimed to have been experienced by his parents as the result of the family planning policies,” and thus he could not show persecution on account of political opinion. Id. The BIA reached this conclusion by reasoning that the statutory definition of “refugee” on account of a violation of the family planning policies includes only “those who violate or resist the family planning policies (the respondent‘s parents in this particular case),” and not the child of such a person. Id. The BIA acknowledged that it has interpreted the statutory definition of refugee to include the spouse of such a person. See In re C-Y-Z, 21 I & N Dec. 915, 918 (BIA 1997). The BIA, however would not interpret the statute to include the child of a person deemed to have suffered persecution on account of political opinion.
It is obvious that the facts here are distinguishable from those in C-Y-Z. In C-Y-Z, the applicant sought asylum based on
A child, however, is not a spouse. It should be obvious to anyone that whereas a husband has a direct interest in whether his wife can have additional children, a child is in a very different position as the family planning policies as applied to his parents can affect him only as a potential sibling and not as a parent. In Chen v. Ashcroft, 381 F.3d 221, 225-27 (3d Cir. 2004), we discussed but did not decide whether the BIA‘s interpretation in C-Y-Z was permissible and then went on to hold that the BIA‘s intеrpretation of
While Wang could not prove persecution on account of political opinion, this failure would not mean that he could not establish that he was persecuted on account of some other statutory reason giving him a basis to seek relief. But in this regard we are satisfied that we cannot disturb the BIA‘s ultimate conclusion that Wang has not established adequately “that the past harm he experienced rose to the level of persecution.” AR Supp. at 6. As the BIA pointed out, Wang “was not arrested, detained, or fined in China, and testified that neither he nor his sister had any trouble attending school.” Id. Thus, the BIA observed that the worst effect on him of the actions against his parents was the destruction of their home, but “he testified the family was able to live in a different home that was not as good.” Id.
In fact Wang‘s claim gets down to an assertion, accepted in these proceedings, that the economic harm to his family by reason of the government‘s рersecution of his parents caused him to be separated from them for a period of time and later required him to live in a house inferior to that in which he lived prior to the persecution. In considering this harm, we are informed by our recent opinion in Li v. Attorney General, 400 F.3d 157 (3d Cir. 2005). After an extensive review of the cases, we held in Li that “the deliberate imposition of severe economic disadvantage which threatens a petitioner‘s life or freedom may constitute persecution.” Id. at 168. As we have indicated we are assuming without deciding that as to Wang‘s parents the authorities’ action did constitute persecution and thus meet the Li test. We alsо are assuming without deciding that in an appropriate case persecution of parents can be persecution of a child even though the effect on the child is only a collateral consequence of his parents’ persecution.
Nevertheless for the child to be persecuted he must show that the persecution threatened his “life or freedom” and in this case Wang has not come close to meeting that standard. Indeed, even the immigration judge who granted Wang relief regarded this case as only marginal. Thus, we need not consider whether the Chinese authorities’ treatment of Wang could be attributed to one of the five statutory bases for granting asylum because he was not persecuted on any basis. Moreover, inasmuch as we have no reason to disturb the BIA‘s finding that Wang was not eligible for asylum his contention that the BIA erred in upholding the immigration judge‘s exercise of discretion to deny asylum is moot.
We realize that our result has the disadvantage of being uncertain in its application as compared to a bright-line rule that persecution only of parents never can be regarded as persecution of a minor child who is a membеr of the parents’ household or always should be so regarded. Thus, application of the principles here will require that immigration judges and the BIA decide cases on an individual basis. Yet as Judge Becker said in his concurring opinion in United States v. Balascsak, 873 F.2d 673, 684, 685 (3d Cir. 1989), “drawing lines depending on the facts is the stuff of judging.” Moreover, in this case the BIA, in what we regard as an unassailable decision, actually drew lines. Furthermore, a determination of whether an adverse act rises to the level of persecution even with respect to the person against whom it is directed requires the drawing of lines. Thus, we are comfortable with our result.
D. Withholding of Removal and Convention Against Torture
Inasmuch as Wang is not eligible for asylum, he cannot demonstrate eligibility for withholding of removal. See Janusiak v. INS, 947 F.2d 46, 47-48 (3d Cir. 1991). Thus, we need not discuss that potential basis for granting Wang relief separately though we do set forth our view that based on the record we see no reason to believe that if he returns to China his life or freedom will be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion or, indeed, as far as we are aware, for any reason. See
IV. CONCLUSION
For the foregoing reasons we will deny the petition for review and will vacate our order of July 26, 2004, staying Wang‘s removal.