Bi Xia Qu v. Holder

• Citation: 618 F.3d 602
• Decision Date: 27 August 2010
• Docket Number: No. 09-3118.,09-3118.
• Parties: BI XIA QU, Petitioner-Appellant,v.Eric H. HOLDER, Jr., Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

618 F.3d 602

BI XIA QU, Petitioner-Appellant,v.Eric H. HOLDER, Jr., Respondent-Appellee.

No. 09-3118.

United States Court of Appeals, Sixth Circuit.

Aug. 27, 2010.

COPYRIGHT MATERIAL OMITTED

ON BRIEF: Jim Li, New York, New York, for Petitioner. Emily Anne Radford, Nehal H. Kamani, United States Department of Justice, Washington, D.C., for Respondent.

Before COLE and CLAY, Circuit Judges; KATZ, District Judge.^*

OPINION

CLAY, Circuit Judge.

Petitioner, Bi Xia Qu, appeals a judgment entered by the Board of Immigration Appeals (“BIA” or “Board”), overturning the Immigration Judge's (“IJ”) grant of asylum and ordering that Qu be removed from the United States to China. For the reasons set forth below, we hereby VACATE the BIA's order and REMAND this case to the BIA for proceedings consistent with this opinion.

BACKGROUND

Qu is a native and citizen of China who was born in 1984. She entered the United States on December 4, 2005 at the Chicago O'Hare International Airport without valid entry documents. On December 15, 2005, the Department of Homeland Security (“DHS”) filed a Notice to Appear (“NTA”) with the immigration court, initiating removal proceedings against Qu. DHS charged Qu with being subject to removal under 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant who was not in possession of valid immigration documents at the time of her application for admission. On January 17, 2006, Qu submitted a motion to change venue, admitted the allegations contained in the NTA, and conceded removability.

On July 13, 2006, Qu filed an application for asylum pursuant to 8 U.S.C. § 1158, withholding of removal pursuant to 8 U.S.C. § 1231(b)(3), and protection under the Convention Against Torture (“CAT”) pursuant to 8 C.F.R. § 1208.16(c)(2). In her application for asylum and withholding of removal, Qu alleged that she was a victim of human trafficking and involuntary servitude. During a hearing on December 15, 2005 regarding Qu's asylum application, Qu testified that her father, who operated a farm that raised seafood, took out a loan of 300,000 yuan from Zhang. Zhang was a “big thug” in the underground world and had powerful connections in the government. When Qu's father was unable to repay the loan, Zhang visited Qu's home on the morning of October 31, 2005. Zhang demanded that Qu's father repay the loan or allow Qu, who was then 20 years old, to become Zhang's wife. Moreover, Zhang threatened to have Qu's family placed in jail if they reported the incident to the police, claiming to have connections with the police and gangsters.

When Qu returned to her family's home that evening, Zhang kidnapped her and brought her to a guarded home, where she remained for approximately two weeks. On the third day after her kidnapping, Zhang attempted to rape Qu. Zhang slapped and kicked Qu and tore off her clothing, but Qu was able to fight him off. After that incident, Zhang checked on Qu every day and threatened to send her to prison if she did not have sex with him or repay the debt. Zhang also threatened to cut off her hands and feet if she tried to escape. After approximately a half a month, Qu escaped the house and fled to her aunt's house. Qu's aunt paid a “snakehead” to smuggle Qu into the United States. Qu departed China on November 18, 2005. On the same day, a local civil summons was issued in Qu's name for the debt owed by her father.

During the asylum hearing, the IJ placed the following materials into evidence: (1) Qu's asylum application; (2) Qu's identification card, birth certificate, and passport; (3) a family picture; (4) a household document; (5) a letter from Qu's parents corroborating Qu's factual allegations; (6) Qu's parents' identification documents; (7) a summons certificate, dated November 18, 2005, requesting that Qu appear before the Lianjian County Public Security Bureau for the unsettled debt case; (8) “I.O.U.” notes made out to Zhang, dated March 6, 2005 and March 8, 2005, listing Qu's parents, Liquan and Yiquan Qu, as the borrowers; (9) letters from Zhang dated June 12, 2005, August 24, 2005, and January 1, 2006 demanding that Qu's parents repay their debt, indicating that they could have Qu marry Zhang instead, and threatening to “destroy [their] home and vanish [their] family,” (J.A. at 156); (10) the U.S. Department of State's 2005 Country Reports on Human Rights Practices in China; and (11) the U.S. Department of State's 2005 International Religious Freedom Report in China.

Qu testified that she feared returning to China because Zhang would harm her and government authorities would punish her for leaving the country without permission. According to Qu, she could not relocate in China, because Zhang would search for her everywhere. Eventually he would find her and either keep her hostage or sell her. The IJ issued an oral decision finding Qu to be credible, but nonetheless finding her to be removable as charged and denying Qu's application for asylum, withholding of removal, and CAT protection. In a supplemental decision, dated January 4, 2007, the IJ sua sponte reopened the proceedings and granted Qu's application for asylum. DHS appealed the IJ's order. On January 13, 2009, the BIA overturned the IJ's decision and ordered that Qu be removed from the United States to China. On February 4, 2009, Qu timely filed a petition for review to this Court.

DISCUSSION

I. Standard of Review

When the BIA issues its own opinion rather than summarily adopts the findings of the IJ, this Court reviews the decision of the BIA as the final agency determination. Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir.2007). This Court reviews the BIA's decision using the substantial-evidence-on-the-record standard, which requires this Court to uphold the BIA's decision unless it is “manifestly contrary to the law.” Castellano-Chacon v. INS, 341 F.3d 533, 552 (6th Cir.2003) (internal citation omitted); see also Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir.2008). Under the substantial evidence standard, this Court will uphold administrative findings of fact unless the Court finds that “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir.2006). This Court reviews legal conclusions of the BIA de novo, Patel v. Gonzales, 432 F.3d 685, 692 (6th Cir.2005), but defers to the agency's reasonable interpretations of its own precedents. Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th Cir.2008).

II. Asylum

The Attorney General has discretion to grant asylum to a refugee who shows that she has suffered past persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion,” or that she has a well-founded fear of future persecution on these grounds. 8 U.S.C. § 1101(a)(42). “Persecution ‘requires more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.’ ” Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir.2005) (quoting Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir.1998)). To show a well-founded fear of future persecution, an applicant must demonstrate:

(1) that [s]he has a fear of persecution in [her] home country on account of race, religion, nationality, membership in a particular social group, or political opinion; (2) that there is a reasonable possibility of suffering such persecution if [s]he were to return to that country; and (3) that [s]he is unable or unwilling to return to that country because of such fear.

Id. (quoting Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir.2004)). An applicant who establishes that she has suffered past persecution is presumed to have a well-founded fear of future persecution. The government may rebut this presumption by showing, by a preponderance of the evidence, that conditions in the country have changed so fundamentally that the applicant no longer has a well-founded fear of future persecution. Id. (citing Pilica, 388 F.3d at 950; Ouda v. INS, 324 F.3d 445, 452 (6th Cir.2003)).

A. Particular Social Group

To establish eligibility for asylum, Qu must first show that she was a member of a particular social group for asylum purposes. In Castellano-Chacon, 341 F.3d at 546-47, this Court adopted the BIA's definition of “particular social group” set out in Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985). In Acosta, the BIA defined “particular social group” as follows:

[W]e interpret the phrase ‘persecution on account of membership in a particular social group’ to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as a former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.... By construing ‘persecution on account of membership in a particular social group’ in this manner, we preserve the concept that refuge is restricted to individuals who are either unable by their own actions, or as a matter of conscience should not be required, [to change] to avoid persecution.

Acosta, 19 I. & N. Dec. at 233-34.

“Courts of Appeals have deferred to Matter of Acosta's broad interpretation of ‘particular social group’ as encompassing any group, however populous, persecuted because of shared characteristics that are either immutable or fundamental.” Hong Ying Gao v....