Zhi Wei Pang v. Holder

• Decision Date: 06 January 2012
• Docket Number: No. 10–9570.,10–9570.
• Citation: 665 F.3d 1226
• Parties: ZHI WEI PANG, a/k/a Zhi Wei Pan, Petitioner–Appellant, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

665 F.3d 1226

ZHI WEI PANG, a/k/a Zhi Wei Pan, Petitioner–Appellant,

v.Eric H. HOLDER, Jr., U.S. Attorney General, Respondent–Appellee.

No. 10–9570.

United States Court of Appeals, Tenth Circuit.

Jan. 6, 2012.

Rachel Gore (Theodore N. Cox with on the brief), Law Offices of Theodore Cox, New York, NY, for Petitioner.

Russell J.E. Verby (Tony West and Shelley R. Goad with on the brief), U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before KELLY, SILER,^* and MATHESON, Circuit Judges.SILER, Circuit Judge.

Zhi Wei Pang, a/k/a Zhi Wei Pan, illegally entered the United States in 1993 from his native country of the People's Republic of China. Just months after his arrival he applied for asylum, withholding of removal under the Immigration and Nationality Act and relief under the Convention Against Torture (CAT). He claims he suffered economic and emotional persecution due to his resistance to Chinese population control policies. But because the economic penalties imposed on Pang did not rise to the level of past persecution, we affirm the decision of the Board of Immigration Appeals (BIA) and deny Pang's petition for review.

I.

Pang was a rice farmer in China and worked on approximately one acre of land that the government assigned to him. He raised 400 kilograms of rice per year but was forced to give 150 kilograms of his harvest to the government. The remaining rice was either sold or consumed by Pang's family.

Pang married his wife, also a native and citizen of China, in 1988. That year the couple gave birth to their first child, a daughter. Soon after her birth, Chinese family planning authorities forced Pang's wife to have an intrauterine device inserted to prevent additional pregnancies. Subsequently, Pang and his wife visited a private physician to remove the device.

In 1989 Pang's wife became pregnant again. When Chinese officials discovered the pregnancy they ordered her to have an abortion. But instead of aborting the child, Pang's wife hid with his brother for the duration of her pregnancy. Pang's son was born in July 1990. After Chinese officials learned of the birth, they forced Pang's wife to undergo a sterilization procedure in August 1990. Subsequently, Pang's wife became pregnant again but the pregnancy was ectopic. She underwent another procedure to terminate the pregnancy and correct the botched sterilization.

The Chinese government fined Pang 3,000 renminbi (RMB) for violating birth control policies. Pang stated that this amount equaled five years of his family's income. By November 1991, approximately one year later, Pang had raised enough money from friends and relatives to pay 1,500 RMB. The Chinese government officially recognized his second child after the payment. But in January 1993, government officials confiscated his home entertainment equipment when Pang was unable to finish paying the fine.

In February 1993, over two years after his wife was sterilized and over a year after he paid half of his fine, Pang fled China for the United States. He currently owns a restaurant in Colorado and annually sends $2,000 to $3,000 to his family. Pang's family continues to live and farm on their government-assigned land.

When Pang entered the United States without inspection in 1993 the former INS commenced deportation proceedings under former INA § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B). In August 1993, Pang requested asylum relief. At a hearing in 1996, the immigration judge (IJ) denied his application for asylum relief based on an adverse credibility finding and granted his application for voluntary departure. Pang appealed to the BIA, which affirmed the IJ's decision without opinion.

Pang appealed the BIA's decision to the United States Court of Appeals for the Second Circuit, which granted Pang's petition for review. Pang v. B.C.I.S., 448 F.3d 102 (2d Cir.2006). It determined that the record failed to support the IJ's adverse credibility finding, which was based on “impermissible conjecture” and “the IJ's failure to develop the record.” Id. at 109. It remanded the case to the BIA, and the BIA, in turn, remanded the case to the IJ.

On remand the venue changed to the Tenth Circuit. In 2008, the IJ denied Pang's applications for relief and granted a voluntary departure. Pang appealed to the BIA, but the BIA dismissed the appeal because he failed to demonstrate “past persecution on account of a statutorily enumerated ground.” The BIA assumed arguendo that Pang's conduct constituted resistance, but found that the economic penalties imposed did not rise to the level of “past persecution.” It noted that “it is not clear from the record how his standard of living may have changed after he paid the fine.” Specifically, Pang's family remains on their land in China, where his wife continues to live and farm. Additionally, Pang “has not demonstrated an objectively reasonable fear of future persecution,” because his debt to the Chinese government has been fulfilled. The BIA also denied Pang's request for withholding of removal and protection under the CAT.

II.

A.

To be eligible for asylum, an applicant must be a “refugee” within the meaning of INA § 101(a)(42), 8 U.S.C. § 1101(a)(42). A “refugee” is a person unable or unwilling to return to his country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The applicant bears the burden of proof of establishing eligibility for asylum. 8 C.F.R. § 208.13; Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir.2001).

In 1996, Congress amended the statutory definition of “refugee” to include persons subject to, or resisting, coercive family planning policies. See IIRIRA § 601(a)(1). In pertinent part, the definition of refugee was amended as follows:

[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, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he ... will be ... subject to persecution for such ... resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

INA § 101(a)(42)(B), 8 U.S.C. § 1101(a)(42)(B) (2006) (emphasis added).

A spouse cannot rely upon “the sole fact of their spouse's persecution automatically to qualify for political asylum under the statute's coercive population control resistance provisions.” Matter of J–S–, 24 I. & N. Dec. 520, 534–35 (BIA 2008). Thus, an individual who has not physically undergone a forced abortion or sterilization procedure is not per se eligible for refugee status. Id. Instead, the individual must demonstrate that (1) he “ ‘resisted’ China's coercive population control program,” (2) he “suffered or has a well-founded fear that he will suffer ‘persecution’ by the Chinese Government,” and (3) “such persecution was inflicted ... ‘on account of’ his resistance....” Id. at 542. A showing of past persecution gives rise to a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1).

B.

Because the BIA assumed that Pang's conduct in China constituted resistance, our analysis focuses on whether he suffered past persecution or has a well-founded fear of future persecution. See J–S–, 24 I. & N. Dec. at 542.

“In this circuit, the ultimate determination whether an alien has demonstrated persecution is a question of fact, even if the underlying factual circumstances are not in dispute and the only issue is whether those circumstances qualify as persecution.” Vicente–Elias v. Mukasey, 532 F.3d 1086, 1091 (10th Cir.2008). We review the agency's factual determination that Pang did not suffer persecution under the substantial evidence standard. Id. The BIA's determination must be upheld “unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary.” Sarr v. Gonzales, 474 F.3d 783, 788–89 (10th Cir.2007) (internal quotation marks omitted).

III.

A.

Pang argues that he suffered economic and emotional persecution as a result of his resistance to Chinese population control policies.

To determine whether a petitioner has demonstrated persecution, the BIA must examine harmful incidents in the “aggregate.” In re O–Z & I–Z–, 22 I. & N. Dec. 23, 26 (BIA 1998). “Persecution is the infliction of suffering or harm upon those who differ ... in a way regarded as offensive and requires more than just restrictions or threats to life and liberty.” Chaib v. Ashcroft, 397 F.3d 1273, 1277 (10th Cir.2005) (internal quotation marks omitted). Mere “denigration, harassment, and threats” are insufficient. Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir.2005).

Economic hardships may qualify as persecution in two ways. First, economic persecution may exist when the government imposes penalties so severe that it jeopardizes the petitioner's life or freedom. Vicente–Elias, 532 F.3d at 1088–90 & n. 4. Second, economic persecution may exist when the government deliberately places the petitioner at a severe economic disadvantage even though he is spared the bare essentials of life. Id. at 1088–89. Government sanctions that may amount to persecution include a “particularly onerous fine, a large-scale confiscation of property, or a sweeping limitation of opportunities to continue to work in an established profession or business.” In re T–Z–, 24 I. & N. Dec. 163, 174 (BIA 2007); see Vicente–Elias, 532 F.3d at 1089.¹ The harm must be “of a deliberate and severe nature ... that is condemned by civilized governments.” T–Z–, 24 I. & N. Dec. at 173.

In Li v. Attorney General of the United States, 400 F.3d 157 (3d Cir.2005), the Third Circuit determined that the petitioner met the “rigorous...