Chen v. Gonzales

• Decision Date: 22 November 2006
• Docket Number: No. 05-60379.,05-60379.
• Citation: 470 F.3d 1131
• Parties: Xue Zhen CHEN, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

470 F.3d 1131

Xue Zhen CHEN, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.

No. 05-60379.

United States Court of Appeals, Fifth Circuit.

November 22, 2006.

COPYRIGHT MATERIAL OMITTED

H. Raymond Fasano (argued), Madeo & Fasano, New York City, for Chen.

Jimmy L. Croom (argued), Jackson, TN, Thomas Ward Hussey, Dir., U.S. Dept. of Justice, OIL, Washington, DC, Anne M. Estrada, U.S. INS, Dallas, TX, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before KING, GARWOOD and JOLLY, Circuit Judges.

KING, Circuit Judge:

Xue Zhen Chen petitions for review of an order of the Board of Immigration Appeals denying her application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Xue Zhen Chen is a native and citizen of China, where she was born and lived in the Fujian Province. In August 2001, Chen left China illegally and entered the United States with the paid assistance of smugglers, known as "snakeheads." Upon arriving at the Los Angeles International Airport from Vietnam, Chen presented a United States passport issued to Jenny Susan Chong. Immigration officials determined Chen's true identity and she was subsequently charged as being subject to removal on grounds that she falsely represented that she was a United States citizen and she did not have any documentation authorizing her presence in the United States.

Chen conceded removability in removal proceedings, but applied for asylum, withholding of removal, and for protection under the United Nations Convention Against Torture ("Convention Against Torture") on April 30, 2002. Chen asserted in her application that she could not return to China because: (1) she feared physical harm from snakeheads and money lenders as retribution for the debt she owed them; (2) local officials were corrupt and profited from illegal smuggling operations and therefore would not protect her from snakeheads and money lenders; (3) her mother was forcibly sterilized and Chen disagreed with China's coercive family planning policy; and (4) she would be jailed because she left China illegally, and once jailed, would be subject to mental and physical torture.

In the two-year intervening period between Chen's application for relief and her removal hearing, Chen lived in Mount Pleasant, Texas, and worked at her uncle's restaurant. While working at the restaurant, Chen became acquainted with members of a nearby Nazarene church who offered to help her improve her English. Chen began taking English lessons at the church, became interested in Christianity, and then took Bible classes and was baptized at the church. At her removal hearing before the immigration judge ("IJ") on March 29, 2004, Chen stated, as part of her argument for relief, that she had converted to Christianity since her arrival in the United States and that she feared persecution on the basis of religion if she returned to China.

The IJ issued an oral decision and accepted Chen's testimony as "basically plausible and credible." The IJ, however, denied Chen's application on all three bases for relief. The IJ concluded that if Chen were to be jailed as a result of her illegal departure from China, the evidence did not support a reasonable fear of harm constituting persecution or a likelihood of torture. The IJ likewise concluded that it was unlikely that snakeheads or money lenders would cause any harm to Chen, and that based on the evidence of the Chinese government's "substantial effort" to detect, arrest, and prosecute corrupt public officials, it was unlikely that the government of China would acquiesce in any harm from snakeheads or money lenders. The IJ further concluded that the substantial period between Chen's mother's forced sterilization, the lack of evidence about Chen's interest in motherhood, and the government's declining efforts to enforce the one-child policy barred relief on the basis of China's family policy. Finally, the IJ concluded that the evidence did not show that it was likely that Chen would suffer harm amounting to persecution on the basis of her conversion to Christianity.

The Board of Immigration Appeals ("BIA") affirmed the IJ's decision without an opinion and Chen timely appealed.

II. STANDARD OF REVIEW

When the BIA affirms the IJ's decision without an opinion, as is the case here, the IJ's decision is the final agency decision for purposes of judicial review on appeal. Soadjede v. Ashcroft, 324 F.3d 830, 831-32 (5th Cir.2003). The agency's administrative "findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary . . . ." 8 U.S.C. § 1252(b)(4)(B). This standard of review essentially codifies the substantial evidence test established by the Supreme Court in INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We apply this standard in reviewing an IJ's factual conclusion that an applicant is not eligible for asylum, Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir.2005), withholding of removal, Zamora-Morel v. INS, 905 F.2d 833, 838 (5th Cir.1990), and relief under the Convention Against Torture, Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 353 (5th Cir.2002).

Under the substantial evidence standard, reversal is improper unless we decide "not only that the evidence supports a contrary conclusion, but also that the evidence compels it." Zhao, 404 F.3d at 306 (quoting Chun v. INS, 40 F.3d 76, 78 (5th Cir.1994)). The applicant has the burden of showing that the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion. Id.

III. DISCUSSION

Chen contends that the IJ erred by denying her application for asylum, withholding of removal, and relief under the Convention Against Torture. We review her claims of error according to each basis for relief.

A. Asylum

The Attorney General has the authority to grant asylum to any applicant who qualifies as a refugee under 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b). The statute defines a refugee as

any person ... who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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). Being classified as a refugee on the basis of past persecution or a well-founded fear of persecution, however, does not automatically entitle a refugee to asylum. Mikhael v. INS, 115 F.3d 299, 303 (5th Cir.1997). The Attorney General's statutory power to grant asylum is discretionary. Id. (noting that the provision's language is precatory, giving the Attorney General discretion to grant asylum).

Because Chen converted to Christianity after her arrival in the United States, her asylum application rests on a well-founded fear of persecution based on religion rather than past persecution. To establish a well-founded fear of future persecution, an applicant must demonstrate "a subjective fear of persecution, and that fear must be objectively reasonable." Eduard v. Ashcroft, 379 F.3d 182, 189 (5th Cir.2004) (quoting Lopez-Gomez v. Ashcroft, 263 F.3d 442, 445 (5th Cir.2001)). Because the IJ credited Chen's testimony, her subjective fear of persecution is not at issue and our review focuses on the objective reasonableness of her fear. The objective prong requires the applicant to establish that "`a reasonable person in [her] circumstances would fear persecution'" if deported. Id. (quoting Faddoul v. INS, 37 F.3d 185, 188 (5th Cir.1994)). Although the Immigration and Nationality Act does not define "persecution," we have relied on a description of persecution as:

The infliction or suffering of harm, under government sanction, upon persons who differ in a way regarded as offensive (e.g., race, religion, political opinion, etc.), in a manner condemned by civilized governments. The harm or suffering need not be physical, but may take other forms, such as the deliberate imposition of severe economic disadvantage, or the deprivation of liberty, food, housing, employment, or other essentials of life.

Abdel-Masieh v. INS, 73 F.3d 579, 583 (5th Cir.1996) (quoting Matter of Laipenieks, 18 I. & N. Dec. 433, 456-57 (BIA 1983)). The well-founded fear standard does not require an applicant to demonstrate that he will be persecuted if returned to his native country, but rather, requires that he establish persecution as a "reasonable possibility." INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); see also Eduard, 379 F.3d at 189 (relying on Cardoza-Fonseca for the proposition that the applicant must establish, "to a reasonable degree," that return to his native country would be intolerable).

To establish the objective reasonableness of a well-founded fear of persecution, an applicant must prove that

(1) he possesses a belief or characteristic a persecutor seeks to overcome by means of punishment of some sort; (2) the persecutor is already aware, or could become aware, that the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and, (4) the persecutor has the inclination to punish the alien.

Zhao, 404 F.3d at 307 (citing Eduard, 379 F.3d at 191).

Chen asserts that the IJ erred by holding that she did not have a well-founded fear of persecution based on her religion. She argues that the IJ's conclusion that her fear of persecution was not objectively reasonable was based on two erroneous assumptions: that Chen's Nazarene faith was not at a level of sophistication such that she would be subjected to persecution and that only a small percentage of Christians are persecuted in China.

Chen first argues that...