YINGGUI LIN, Petitioner, v. ERIC H. HOLDER, JR., United States Attorney General, Respondent.
No. 08-3573
United States Court of Appeals for the Sixth Circuit
Decided and Filed: May 14, 2009
09a0174p.06
Before: MARTIN and GILMAN, Circuit Judges; ZOUHARY, District Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. Submitted: March 13, 2009. On Petition for Review from a Final Order of the Board of Immigration Appeals. No. A98 354 937.
ON BRIEF: Richard T. Herman, LAW OFFICES, Cleveland, Ohio, for Petitioner. Craig A. Newell, Jr., Aviva L. Poczter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
OPINION
JACK ZOUHARY, District Judge. Petitioner Yinggui Lin (Lin) is a Falun Gong practitioner who allegedly fled from persecution in China, including a Chinese police raid on his gaming business which resulted in the confiscation of equipment. Lin entered the United States illegally in September 2004 near Roma, Texas. That same month, the
The immigration judge denied Lin‘s application at a merits hearing in August 2006. The denial was affirmed in April 2008 by the Board of Immigration Appeals (BIA). Lin filed this appeal in May 2008. He argues the BIA erred in upholding the immigration judge‘s finding that Lin failed to provide corroborating evidence of the circumstances supporting his request for asylum. Lin also argues the immigration judge erred in failing to find a nexus between his Falun Gong activities and the Chinese police‘s confiscation of his gaming equipment, and to properly review the State Department Human Rights Report on discrimination against Falun Gong practitioners in China. Finally, Lin argues his due process rights were violated when the immigration judge did not properly mark Exhibit 2 (his application for asylum with supporting documentation) into the record.
For the reasons set forth below, we DENY the petition on all grounds.
BACKGROUND
Falun Gong is a spiritual discipline comprised of meditation exercises with moral components, including cultivation of virtue and character. Introduction to Falun Dafa / Falun Gong, http://www.falundafa.org/eng/intro.html (last visited April 16, 2009).
According to Lin‘s testimony before the immigration judge, he has been a Falun Gong practitioner since 1997. Friends recommended the practice to aid in relaxation as well as physical and mental health. Lin ceased his practice in 1999 when the Chinese government began suppressing Falun Gong, but he renewed the practice in 2003.
One of Lin‘s fellow Falun Gong practitioners was arrested in 2003 and apparently reported Lin‘s name to the Chinese police. In December 2003, the police raided Lin‘s business, a gaming room, when he was not there. The police told Lin‘s employee, Xianfei Wong, that Lin was being targeted because he was a Falun Gong
Immediately following this incident, Lin left Hangzhou and moved to Shenzen, where he stayed with a friend and continued to practice Falun Gong. Lin‘s employer, a restaurant owner, saw Lin practicing Falun Gong while at work in June 2004. His employer told him to cease his practice or he would call the police. Instead, Lin left this job.
In December 2003, while Lin was living in Shenzen, police visited his parents’ house in Hangzhou, showed his parents a notice for Lin‘s appearance, and asked where he was. The police allegedly wanted to arrest Lin because of his Falun Gong practices and asked his parents to advise Lin to surrender himself to authorities, which Lin refused to do. According to his parents, police continued to look for Lin through August 2005.
Lin left China in July 2004, borrowing money from friends and relatives and paying a “snakehead” $30,000 to smuggle Lin into the United States. He entered the United States illegally in September 2004 near Roma, Texas, and the next day was served with papers charging him as an illegal alien. Lin currently lives in Cleveland with his cousin and several others. He continues to practice Falun Gong, although his cousin and others living with them, who allegedly have observed his practice, did not testify at the hearing.
The immigration judge issued an oral decision at the conclusion of the August 2006 merits hearing denying Lin‘s applications for asylum, withholding of removal, and CAT protection.
Although the judge found Lin credible, he based his denial on Lin‘s failure to present corroborating evidence of his Falun Gong practice in China and the United States. The judge specifically found Lin did not “provide an adequate explanation for his failure to produce,” for example, statements from friends with whom he practiced Falun Gong in Hangzhou, the friend with whom he stayed in Shenzen, his employer in Shenzen, or others in the United States (JA 35-37). The judge also sought corroboration
The judge acknowledged the affidavit from Xianfei Wong, Lin‘s employee at his gaming room, but found this sole piece of corroborating evidence “too speculative to make a definitive conclusion” (JA 38). Likewise, the letter Lin proffered from his parents was “not very specific” and contained no dates or details regarding the police confrontation or that the police interference was because of Lin‘s Falun Gong practice (JA 39). The judge found the letter from Petitioner‘s aunt similarly vague and general, entitled to “very limited weight under the circumstances” (id.).
Lin failed to carry the burden of proof required for granting asylum because he demonstrated neither past persecution in China for his Falun Gong practice nor “a well-rounded fear of future persecution based upon a totality of the evidence” (JA 40). Because Lin failed to meet his burden to show eligibility for asylum, he necessarily failed to meet the higher burden required for withholding of removal, and failed to demonstrate the likelihood of torture on his return to China.
The BIA affirmed the immigration judge‘s findings that Lin failed to meet his burden of proof and questioned the absence of many documents or witnesses that Lin might have been able to produce to corroborate his Falun Gong practice. The BIA indicated that “[w]hile the lack of some of these may be adequately explained, the overall lack of support leads us to agree with the Immigration Judge” (id.). Though the BIA noted that “a respondent‘s testimony[] alone may be sufficient to support an application for relief, here, without other support, it failed to meet [Petitioner‘s] burden of proof” (id.). Lin now appeals the BIA‘s decision.
Standard of Review
Lin argues this Court should conduct a de novo review of the BIA‘s fact-finding because the BIA allegedly erred in its interpretation of the law. However, the proper standard governing this Court‘s review of the BIA‘s findings of fact is substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Thermija v. INS, 102 F. App‘x 920, 921 (6th Cir. 2004) (“[F]indings of fact are ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.‘” (quoting
Questions of law and constitutional questions are subject to de novo review, with deference to the BIA‘s reasonable interpretation of the statutes and regulations. Nat‘l Cable & Telecomms. Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 980-81 (2005) (citing Chevron, U.S.A., Inc. v. Natural Resources Def. Council, 467 U.S. 837, 843-44 (1984)).
Petition for Asylum
To establish eligibility for asylum, an applicant must establish he is a “refugee” within the meaning of INA Section 101(a)(42),
[t]he testimony of the applicant may be sufficient to sustain the applicant‘s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant‘s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. . . . Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.
In the instant case, substantial evidence supports the BIA‘s finding that Lin failed to meet his burden. Furthermore, Lin does not demonstrate that the record evidence compels the conclusion that additional evidence sought by the immigration judge was unavailable. Notably, Lin failed to present sufficient corroboration of his past Falun Gong practice in China and his present practice in the United States. Because his status as a Falun Gong practitioner is critical to his asylum petition, failure to corroborate his past and present Falun Gong practice is fatal to his application.
The immigration judge also cited Lin‘s inability to present the notice served on his parents by the Chinese police as an important, missing corroborative piece of evidence. This document could have established the Chinese authorities were looking for Lin because he was practicing Falun Gong. The judge found Lin‘s stated reason for its absence -- that his parents threw it away in anger -- inadequate. The judge also found the lack of specificity in the supporting letters from Lin‘s parents and aunt insufficient to corroborate his Falun Gong practice. Both letters contain vague, conclusory statements regarding his Falun Gong practice without specifying a connection between that practice and his persecution at the hands of the Chinese police. Given Lin‘s argument that the police came looking for him at his parents’ home, the failure to discuss that incident in any detail is an important missing piece of information.
Lin also did not meet his burden in corroborating his current, continuing practice of Falun Gong in the United States. Without showing that he continues to be a Falun Gong practitioner, Lin cannot support his argument that “race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason” for persecution on his return to China.
Lin argues the BIA‘s focus on the need to provide corroborating evidence sidesteps the proper inquiry into the availability of that corroborating evidence under Dorosh. However, Dorosh stands for the proposition that “where it is reasonable to expect corroborating evidence for certain alleged facts pertaining to the specifics of an applicant‘s claim, such evidence should be provided.” 398 F.3d at 382 (emphasis added). Lin‘s argument that the immigration judge “failed to properly address the materiality and evidentiary value of the corroborating documents” is, in effect, an argument the judge should have given greater weight to the evidence he did submit, rather than request evidence Lin was reasonably expected to submit, per Dorosh.
The BIA specifically noted that it reviewed whether the corroborating evidence the immigration judge requested was reasonably available to Lin (JA 9) (“Nonetheless, the Immigration Judge recites a large number of documents or witnesses that the respondent might have been expected to produce. While the lack of some of these may be adequately explained, the overall lack of support leads us to agree with the Immigration Judge.“). The BIA even disagreed with the immigration judge‘s finding that Lin could have reasonably obtained a letter from his employer at the restaurant in Shenzen who threatened to call the police when he discovered Lin practiced Falun Gong, indicating the BIA seriously considered whether all the evidence the immigration judge requested was, in fact, reasonable for Lin to present. As previously noted, re-weighing the evidence is not part of this Court‘s role under the substantial-evidence standard. See
To the extent Lin also argues this Court should take judicial notice of the 2008 State Department Country Report on China, appellate review is limited to the administrative record.
Withholding of Removal Under INA
To qualify for withholding of removal, an applicant must demonstrate it is more likely than not that, if removed to a designated country, his “life or freedom would be threatened” on account of a protected ground. INA § 241(b)(3)(A), codified at
Lin argues the BIA erred in upholding the immigration judge‘s decision to deny relief under CAT,
Due Process Violation
Lin also alleges a violation of his due process rights based on the immigration judge‘s failure to physically mark Exhibit 2 for identification at the hearing. Respondent argues this claim should be dismissed for want of jurisdiction because Lin failed to present it to the BIA. However, Lin alleges he did not receive notice of the immigration judge‘s error until after he filed his petition with the BIA. Lin must exhaust his claim administratively in order for this Court to retain jurisdiction to hear it.
However, even if Lin had administratively exhausted his due process claim, it would still be without merit. Due process entitles aliens to a full and fair hearing, though the immigration judge retains “broad discretion in conducting that hearing.” Castellano-Chacon v. INS, 341 F.3d 533, 553 (6th Cir. 2003). A due process violation occurs only when “the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Hassan v. Gonzales, 403 F.3d 429, 436 (6th Cir. 2005) (quoting Ladha v. INS, 215 F.3d 889, 904 (9th Cir. 2000)). To prevail on a due process challenge, an alien must demonstrate not only error, but also “substantial prejudice,” or showing the alleged violation affected the outcome of the proceeding. Gishta v. Gonzales, 404 F.3d 972, 979 (6th Cir. 2005).
In the instant matter, Lin has not demonstrated that the immigration judge‘s failure to physically mark the evidence as Exhibit 2 was anything more than a clerical error. The hearing transcript indicates the judge verbally identified Exhibit 2 and placed
Remand
Finally, Lin argues his case should be remanded to the BIA on grounds of “extreme hardship,” citing a string of cases in support. However, the “hardships” relating to Lin‘s removal are analogous to any other removal of an alien illegally present in the United States. The cases cited in support of remand can be factually distinguished. See, e.g., Miller v. INS, 762 F.2d 21, 25 (3d Cir. 1985) (finding remand appropriate in light of newly discovered evidence regarding petitioner‘s application for adjustment of status); David v. INS, 548 F.2d 219, 223 (8th Cir. 1977) (staying issuance of mandate for 90 days to allow petitioner to petition for a discretionary stay because the court found the effect of his expulsion on his family placed petitioner in a “deferred action category,” allowing him to remain in the country on humanitarian grounds); United States v. McAllister, 395 F.2d 852, at *1 (3d Cir. 1968) (suggesting “substantial evidence” in the record indicated petitioner had been rehabilitated and deportation should be stayed, but nevertheless affirming the district court‘s deportation order); Pimental-Navarro v. Del Guercio, 256 F.2d 877, 880 (9th Cir. 1958) (granting remand despite “no basis for judicial disturbance of the judgment” because of the extreme hardship on petitioner‘s family, including his six children, three of whom were minors).
Lin has not demonstrated the record compels a contrary conclusion to the BIA‘s affirmation of the immigration judge‘s decision. Remand is inappropriate.
CONCLUSION
For all the foregoing reasons, we DENY Lin‘s petition for review.