Jin Bin Wu v. Holder
| Decision Date | 18 June 2012 |
| Docket Number | No. 11-9572,11-9572 |
| Parties | JIN BIN WU, Petitioner, v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(Petition for Review)
ORDER AND JUDGMENT*Before BRISCOE, Chief Judge, PORFILIO, Senior Circuit Judge, and MURPHY, Circuit Judge.
Jin Bin Wu petitions for review of a Board of Immigration Appeals (BIA) decision upholding an order for his removal. The BIA dismissed Mr. Wu's appeal from an Immigration Judge's (IJ's) denial of asylum and restriction on removal. We deny the petition for review for the reasons explained below.
Mr. Wu is a native and citizen of the People's Republic of China. He entered the United States without being admitted or paroled after inspection in July 2005, rendering him subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i). Less than a year later he applied for asylum, restriction on removal,1 and relief under the United Nations Convention Against Torture (CAT). He claimed persecution on account of his resistance to China's family planning policy. At the hearing before the IJ, he testified that in late December 2004, when authorities learned that his wife had become pregnant after already having a son, family planning officers came to their home to take her for an abortion. He and his wife ineffectually resisted. He initially pleaded with the officers not to take her. They did not relent and he began to chastise them, using some derogatory language, for persecuting innocent citizens. When they pushed past him and took hold of his wife, a scuffle ensued. The officers restrained Mr. Wu, who hit one and kicked another (he testified the blows were inadvertent) before falling to the floor. At that point, neighbors crowded around and he got to his feet and ran. An officer yelled to another to catch and arrest him. He was chased for five to ten minutes, but eventually got away. He hid with friends for several months and then began a lengthy journey to the United States.
His wife had the abortion the day after she was taken by the family planning officers. She has since stayed at their home with their son, apparently without any repercussions from the incident. Mr. Wu testified that his wife has told him that unidentified family planning officers (not police) had looked for him at their home, his mother's home, and his brother's home, and have continued to come looking for him three to four times a year, the last time some three months before the hearing. They told his wife to tell him to return home. He testified that he believed the officers intended to arrest him upon his return, and later added that they told his wife and family that he would be arrested. He confirmed their authority to make arrests, but also admitted that he did not know anyone who had been arrested. He submitted a letter signed by several of his former neighbors in China vouching for his account of the incident leading to his wife's abortion, which also stated that "[t]he officials wanted to arrest" him that night and that he "cannot return home, because the officials want to arrest him." Admin. R. at 628.
The IJ found that Mr. Wu had established neither past persecution nor a well-founded fear of future persecution, denied all requested relief, and ordered Mr. Wu removed. On appeal to the BIA, Mr. Wu did not challenge the IJ's finding as to the lack of past persecution or the IJ's denial of relief under the CAT. As for future persecution, the BIA agreed with the IJ that Mr. Wu's fear of arrest was not well-founded, and added that there was no evidence an arrest would entail adverse consequences rising to the level of persecution in any event. Accordingly, the BIAupheld the denial of asylum and restriction on removal and dismissed Mr. Wu's appeal. The BIA also refused to consider additional documentation that Mr. Wu had submitted in connection with a motion to reopen/reconsider then still pending before the IJ.2
Because the BIA's decision was issued by a single member, see 8 C.F.R. § 1003.1(e)(5), we "review[] both the decision of the BIA and any parts of the IJ's decision relied on by the BIA in reaching its conclusion," Dallakoti v. Holder, 619 F.3d 1264, 1267 & n.1 (10th Cir. 2010). In doing so, "[w]e review the BIA's legal determinations de novo and its findings of fact for substantial evidence." Id. at 1267. The latter standard is very deferential: "factual findings are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Id. And it applies not only to historical facts but to ultimate factual determinations, including, as relevant here, whether an alien has demonstrated persecution to support a request for relief from removal. Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009) ().
An alien like Mr. Wu, who has not been forced to undergo an abortion or an involuntary sterilization, or been persecuted for refusing to do so, may still establish eligibility for asylum based on governmental population control activities by showingthat he has been persecuted for "resistance to a coercive population control program." 8 U.S.C. § 1101(a)(42)(B); see Zhi Wei Pang v. Holder, 665 F.3d 1226, 1230 (10th Cir. 2012). To qualify for asylum on this basis, Mr. Wu had to "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 [or will be] inflicted on account of his resistance." Zhi Wei Pang, 665 F.3d at 1230-31 (). "Because the BIA assumed that [Mr. Wu's] conduct in China constituted resistance, our analysis focuses on . . . persecution." Id. at 1231. And because Mr. Wu does not claim past persecution, we focus solely on whether the finding that he lacked a well-founded fear of future persecution was supported by substantial evidence—with no presumption of future persecution based on past events, see 8 C.F.R. § 1208.13(b)(1). To be well-founded, such a fear requires "a reasonable possibility" that the alien would be persecuted upon removal to his country of nationality. Id. § 1208.13(b)(2)(i)(B); INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987).
The BIA found Mr. Wu's case for asylum based on fear of future persecution deficient for two distinct reasons: (1) "the record evidence did not provide sufficient objective support for [Mr. Wu's] belief that he faces a reasonable possibility of being arrested because of his altercation with family planning officials in 2004"; and (2) he"did not, in any event, testify with any specificity as to his reasonable fear that if he were arrested upon his return to China, his arrest would lead to treatment that would rise to the level of persecution as this term is defined." Admin. R. at 5. As each of these rationales is sufficient to support the BIA's decision, we may affirm on either basis. See Murrell v. Shalala, 43 F.3d 1388, 1390 (10th Cir. 1994) ().
The BIA recited several considerations leading to its conclusion that Mr. Wu had failed to substantiate a reasonable possibility of arrest. His testimony in this regard "primarily relied on hearsay statements from his family and wife" and "lacked details as to who these individuals were who he claimed have been continuously visiting his family and wife; . . . what they wanted [him] to do once he returned home; and . . . what they intended to do to [him] once he was found." Admin. R. at 3-4. The BIA stated that he never "testif[ied] that his family was in fact told that he will be arrested"; rather "it was only [his] belief that he will be arrested." Id. at 4. As for the letter submitted by his former neighbors, "neither their letter nor [his] testimony provided the foundation for the neighbors' otherwise speculative belief regarding the authorities' current and prospective interest in [Mr. Wu] years after his departure from the country." Id. (). The BIA also cited the 2007 Profile of Asylum Claims and Country Conditions ("2007 Profile"), which states that criminal penalties are not imposed "on families that do not comply with the birth planning law" in Mr. Wu's home province. Admin. R. at 276.3 And Mr. Wu admitted "that he did not know anyone who was arrested for violating the family planning rules." Id. at 4. Finally, the BIA noted that "there is no indication that [Mr. Wu's] wife, who [he] testified also attempted to physically resist the family planning officials, was herself arrested or faced criminal sanctions because she too resisted the enforcement efforts of the family planning officials." Id. at 5. at 9 (citation omitted).
On its face, the above evidence provides substantial support for the BIA's conclusion that Mr. Wu had not established a reasonable possibility of arrest. Mr. Wu does, however, point out certain problems lurking behind the BIA's stated rationale. The most troubling is the BIA's flat misstatement of the record when it said Mr. Wu never testified that his family had been told he would be arrested, so that his fear in this respect rested solely on his own personal belief. Actually, whensquarely asked "Did they [family planning officials] ever directly say that you would be arrested," he responded Admin. R. at 167. This also undercuts the BIA's criticism that Mr. Wu's testimony lacked specificity as to what the authorities...
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