Jun Ying Wang v. Gonzales

• Decision Date: 28 April 2006
• Docket Number: No. 05-1344.,05-1344.
• Citation: 445 F.3d 993
• Parties: JUN YING WANG, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

445 F.3d 993

JUN YING WANG, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 05-1344.

United States Court of Appeals, Seventh Circuit.

Argued October 28, 2005.

Decided April 28, 2006.

Pengtian Ma (argued), Chicago, IL, for Petitioner.

George P. Katsivalis (argued), Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, Thankful T. Vanderstar (argued), Andrew C. MacLachlan, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Jun Ying Wang, a native of the People's Republic of China, entered the United States in July 1997 on a one-month temporary nonimmigrant visitor's visa, which she overstayed. She was still in the United States in October 2001, when she was convicted for her part in a scheme to obtain Social Security cards using fraudulent documents. Consequently, the Department of Homeland Security issued Wang a Notice to Appear ("NTA"), charging her with removability for overstaying her visitor's visa, being convicted of a crime of moral turpitude, and violating 18 U.S.C. § 1546 (prohibiting fraud and misuse of visas, permits, and other entry documents). In response, Wang admitted the allegations in the NTA, conceded removability, and applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture ("CAT"). She based her request on her fear that if she returned to China, she would be attacked by her codefendants in the Social Security fraud scheme, who sought retribution against her because she had cooperated with authorities and received a more lenient sentence. The Immigration Judge ("IJ") denied Wang's requests for relief, and the Board of Immigration Appeals ("BIA") summarily affirmed. Wang now petitions for review of the BIA's decision, and we deny the petition for review.

I.

Wang testified through an interpreter at a hearing held by an IJ on February 20, 2004. Much of the hearing was dedicated to Wang's explanation of her participation and subsequent conviction in the Social Security card scheme. She claimed that she became involved in April 2001 when her then-boyfriend, Yonghong Guo, asked her to take a fake passport and "receipt" to the Social Security office to pick up a Social Security card. Wang maintained that she had never used a fake passport to obtain a Social Security card before, but that Guo and a friend of his, Wei Chu, had previously obtained Social Security cards by presenting fraudulent identification documents such as passports, I-94 forms, and nonimmigrant visas.

In May 2001 Wang, Guo, and Chu were charged together in a thirty-two count indictment with violating 18 U.S.C. §§ 1543 (prohibiting forgery or false use of a passport), 1546(a) (prohibiting use of forged or counterfeit nonimmigrant visas), 1028(a)(6) (prohibiting knowingly possessing a United States identification document produced without lawful authority) amended by PL 109-177, Mar. 9, 2006 (120 Stat. 192), and 42 U.S.C. § 408(a)(6) (forbidding knowingly furnishing false information to the Commissioner of Social Security). Wang testified before the IJ that after the three of them were arrested, she provided prosecutors with information about the conspiracy. Specifically, she claimed to have told prosecutors how and where the fake documents were produced and who was involved. She also told prosecutors about the computer that Guo and Chu had used to create the fraudulent "passport visas" and I-94 cards. Finally, Wang testified that she told prosecutors about a fourth individual, Shi Wei Min, who had stepped in and taken over the computer after Guo and Chu were arrested.

In October 2001, Wang pleaded guilty pursuant to a written plea agreement to violating 18 U.S.C. §§ 1543, 1546(a), 1028(a)(6), and 42 U.S.C. § 408(a)(6). Guo and Chu also pleaded guilty at that same time. Wang's plea agreement contemplated that she would cooperate fully in the investigation and prosecution of the matters in the indictment, and that if she provided substantial assistance, the United States would consider moving for a downward departure from the United States Sentencing Guidelines on her behalf. At sentencing (in February 2002), the government did move for a downward departure on Wang's behalf, and the court departed downward from the six to twelve-month range called for by the Guidelines and sentenced her to concurrent three-month terms of imprisonment to be followed by two years of supervised release.

At the time of her immigration hearing, Wang did not know whether Guo and Chu had been sentenced or what sentences they received. Presumably, however, they were sentenced shortly before or after Wang, because Wang's presentence investigation report (included with her asylum application) stated that all three would be sentenced together on February 14, 2002. Moreover, Wang reported that both Guo and Chu had already been removed to China.

In support of her asylum claim, Wang testified that if she returns to China, Guo and Chu will seek retribution against her on account of her cooperation with prosecutors. Wang recounted the following examples to demonstrate Guo and Chu's intentions. First, she testified that while the three were jailed together before she pleaded guilty, some female inmates who moved onto her floor from the floor housing Guo and Chu informed her that the men were offering a reward to beat up Wang. Specifically, the women told Wang that they had been told that the person "[w]ho beat the Chinese girl will get the $200 from the Chinese guy."

Wang also testified that Guo had contacted her from China and threatened her. In April 2003 Guo and another individual (presumably Chu) went to Wang's brother's house in Shenyang and demanded that he call Wang. When Wang's brother resisted, they smashed his television. He then called Wang, and when she answered, Guo was on the line and accused Wang of betraying her friends. He then gave her this ominous warning about returning to China: ". . . as soon as you return to China I will try to look for you and the moment you see me will be the end of your day." Although Wang's brother reported the incident to the police, when they looked for Guo he had moved. According to Wang, Guo also called her brother on several other occasions demanding money.

In response to questioning from the IJ about why Wang could not move so that Guo and Chu could not find her, Wang testified that it would be hard for her to relocate because all of her family is in Shenyang. Further, she maintained that if she were able to move, they would still find her. She also claimed that the police could not adequately protect her because they "cannot be around all the time and they can do things to you and the police in China they only come when after [sic] the thing happened."

In addition to her fear of Guo and Chu, Wang asked the judge to consider the fact that she had married a United States citizen. Unfortunately, after their marriage, Wang's husband was involved in a serious car accident that left him in a vegetative state. Thus, they had never lived together, although Wang's counsel speculated that Wang had some sort of shared guardianship over her husband.

Before rendering his decision, the IJ expressed his concern that Wang had never identified the ground on which she based her claim for asylum. In response to questioning from the IJ on this point, Wang's counsel conceded that her claim did not fit neatly into the categories for asylum — race, religion, nationality, membership in a particular social group, or political opinion. When asked to identify a basis for the claim, counsel responded, "I think we ask the Court to make a determination probably because she provided assistance to the Government." Counsel continued, suggesting that "there should be an exception to the categories of the rules because she provided assistance to the Government of the United States [and] that's the reason why her life will be in danger."

The IJ denied all of Wang's requests for relief. As for her asylum claim, he concluded that although Wang may have a well-founded fear of being harmed in China, her fear was not on account of her race, religion, nationality, membership in a particular social group, or political opinion. Specifically, the IJ considered whether Wang could argue that she is a member of a social group made up of criminal defendants who have cooperated with authorities in the United States. He concluded, however, that such a classification was not the type of social group contemplated under the Immigration and Nationality Act ("INA").

The IJ then rejected Wang's claim that she could not relocate within China so as to avoid contact with her codefendants. The IJ acknowledged that Wang had presented "limited evidence" that Guo would be able to find her if she relocated and that it is difficult to move freely in China. Nonetheless, the IJ credited the U.S. Department of State Country Report on China, which he claimed established that "there is a floating population in China [of] more than many millions." Further, the IJ concluded from the fact that the police had responded to Wang's brother's complaint that Chinese authorities could provide assistance to Wang if she felt threatened.

Finally, the IJ explained that even if Wang qualified as a refugee, he would deny asylum in his discretion. He concluded that the record contained little favorable evidence to offset Wang's criminal conduct in the United States. First, she had violated the terms of her visitor's visa by staying in the country, and had then engaged in criminal conduct. Moreover, that conduct provided the basis for her entire asylum claim. The IJ also gave very little weight to Wang's marriage to a United States citizen because she had been living with Guo until her arrest and had never lived in the same state as her spouse....