Liu v. Ashcroft
Decision Date | 17 August 2004 |
Docket Number | No. 03-3870.,03-3870. |
Citation | 380 F.3d 307 |
Parties | Mei Dan LIU, Petitioner, v. John D. ASHCROFT, Attorney General of the United States, Respondent. |
Court | U.S. Court of Appeals — Seventh Circuit |
J. Andrew Moss (argued), Sachnoff & Weaver, Chicago, IL, for Petitioner.
George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Thomas K. Ragland (argued), Department of Justice, Washington, DC, for Respondent.
Before FLAUM, Chief Judge, and DIANE P. WOOD and EVANS, Circuit Judges.
This matter is a Petition for Review of an Order of Removal issued by the Board of Immigration Appeals ("BIA") brought by Petitioner Mei Dan Liu, a native and citizen of the People's Republic of China. Mei Dan fled China at the age of sixteen because, according to her, the local government officials believed that she was a follower of Falun Gong, the Chinese health and spiritual movement that was outlawed by the Chinese government in 1999. As a result of her imputed membership in Falun Gong, Mei Dan claims that she was arrested, jailed, physically abused, interrogated, threatened, expelled from school, and her home was ransacked.
Upon arriving in the United States after a long journey, Mei Dan was detained and placed in removal proceedings. At that time, she requested political asylum and was referred to the Immigration Court in Chicago, Illinois. An Immigration Judge ("IJ") denied Mei Dan's applications for asylum under § 208(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1158(a), withholding of removal under § 241(b)(3) of the INA, 8 U.S.C § 1231(b)(3), and for relief under the United Nations Convention Against Torture, as implemented in 8 C.F.R. § 208.16(c). The BIA dismissed Mei Dan's appeal of the Immigration Judge's ("IJ") decision. Mei Dan then petitioned this Court for review of her asylum claim. For the reasons stated in this opinion, we deny the petition for review and affirm the decision of the BIA.
The BIA found that even if it accepted Mei Dan's testimony as true, she failed to establish her eligibility for asylum. In reviewing the BIA's decision, we too accept the facts as Mei Dan presented them at her asylum hearing.
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Mei Dan testified as follows: Until she fled China at age sixteen, Mei Dan lived with her parents and younger brother in Tin Tou Village in Fuzhou City, in the Fujian Province, China. Her father worked as a rock miner and her mother was a homemaker who also cleaned other people's houses and babysat children. Mei Dan was a student, but often worked odd jobs to supplement the family's income. In November 2001, a neighbor sympathetic to Mei Dan's family's financial situation gave Mei Dan books to sell in the local park. As it turned out, a number of the books were associated with Falun Gong. While Mei Dan was selling the books along with the neighbor in the park, a group of local government officials came by to inspect the vendors. The neighbor ran away, but the officials apprehended Mei Dan, confiscated her books, and took her forcibly to the Village Committee Office.
At the Village Committee Office, the police interrogated Mei Dan and accused her of being a follower of Falun Gong. Although Mei Dan had seen some Falun Gong practitioners in the park before, she was not familiar with the movement and had never herself been a follower. The police pressured her to confess to an involvement in Falun Gong, but she refused and insisted that she was only selling books. The police then pulled Mei Dan's hair, which caused her to cry, and pushed her backwards off of her chair and onto the ground. After the interrogation, the police placed Mei Dan in a jail cell. During her detention, the police and guards continued to pressure Mei Dan to confess. At one point, a guard pushed her to the ground, pulled her hair, and taunted her when she refused to confess. Mei Dan was released after two days in detention when her parents paid 5,000 yuan as bail. The police issued Mei Dan an "arrest certificate," and advised her to think about what happened. The police reported her arrest to her school, and as a result Mei Dan was expelled.
One month later, the police searched and ransacked Mei Dan's family's apartment while Mei Dan and her mother were home alone. The police came into the apartment and began questioning Mei Dan and her mother about Mei Dan's affiliation with Falun Gong. The police told Mei Dan's mother that they did not believe Mei Dan's denials. The police pushed Mei Dan's mother to the floor and warned Mei Dan that they had ransacked the apartment as "a lesson for you ... to think about." Frightened by this incident, Mei Dan's family decided that for her safety she should flee China and stay with a cousin in the United States.
Assisted financially by a relative, Mei Dan fled China in March 2002. She left China with a valid Chinese passport and travel papers. She traveled to Hong Kong; then to Thailand; and then to Holland, where she stayed for several weeks. While in Holland, someone took Liu's Chinese passport and gave her a Japanese one, instructing her to use it in the United States.
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On May 24, 2002, having spent two months in transit, Mei Dan arrived by plane at Chicago's O'Hare International Airport, presented her invalid Japanese passport, and was immediately detained. Although she admitted her true name and country of origin, she represented to immigration officials that she was an adult and fled China because she was arrested for living with her boyfriend. She later testified that she misrepresented these facts because people in China warned her that she would be immediately deported to China if she admitted to being a minor. She was also told that saying she was arrested for living with her boyfriend would help her obtain asylum. Believing that she was an adult, immigration officials placed Mei Dan in an adult jail. Four months later, upon discovering that she was in fact a minor, officials transferred her to a juvenile facility. She was placed back in the general population of the McHenry County Jail on her eighteenth birthday.
Mei Dan's case was referred to an IJ for an asylum-only proceeding. Mei Dan obtained from her parents copies of the arrest certificate and receipt for her bail, as well as a letter from the neighbor who gave Mei Dan the Falun Gong books. A hearing was held before the IJ at which Mei Dan testified. Following the hearing, the IJ issued an oral decision denying relief on the ground that in his view Mei Dan was not a credible witness. The IJ found that Mei Dan's testimony regarding the mistreatment she endured was not "worthy of belief," that the various misstatements she offered regarding her age and the basis of her asylum claim "undercut[ ] her credibility," and that the unauthenticated documents she provided were not "credible or reliable." In his decision, the IJ indicated that he believed Mei Dan had fled China to attend college in the United States and that the Chinese government would not treat a minor in the manner that Mei Dan described.
Mei Dan appealed to the BIA. The BIA affirmed on the ground that Mei Dan's testimony, if accepted as true, failed to demonstrate that she was persecuted, or that she held a well-found fear of future persecution. Mei Dan then petitioned this Court to review that determination.
The first issue presented is whether we should review the BIA's order standing alone or as supplementary to the IJ's decision. In cases where the BIA's opinion merely supplements the opinion of the IJ, the IJ's opinion as supplemented by the BIA's opinion becomes the basis for review. See Niam v. Ashcroft, 354 F.3d 652, 655-56 (7th Cir.2004). When the BIA issues its own opinion rather than adopting or merely supplementing the opinion of the IJ, the Court reviews only the decision of the BIA, not that of the IJ. See Begzatowski v. INS, 278 F.3d 665, 669 n. 5 (7th Cir.2002). Mei Dan contends that the BIA's opinion merely supplements the IJ's decision, whereas the Attorney General argues that the BIA issued a freestanding opinion that provides a reasoned explanation of the decision to deny asylum.
We agree with the Attorney General. The BIA's decision rested on grounds that were in the alternative to the ones the IJ used in dismissing Mei Dan's petition. The BIA clearly stated that even if it accepted that the IJ erred in its credibility determination, the evidence Mei Dan presented failed to satisfy her burden of proving eligibility for asylum. The BIA did not make its determination based on the facts as the IJ found them to be, but rather purported to view the facts in the light most favorable to Mei Dan. The BIA conducted its own analysis of the evidence and declined to adopt, affirm, or even address the adverse credibility determination that was the basis of the IJ's opinion. Consequently, we are limited in our review to the findings and conclusions of the BIA, which do not include an evaluation of the IJ's credibility determination.
We review the BIA's decision under the "highly deferential version of the substantial evidence test, which requires us to affirm if the [BIA]'s decision to deny asylum is `supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Karapetian v. INS, 162 F.3d 933, 936 (7th Cir.1998) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). We will not grant the petition for review unless the petitioner shows that "the evidence not only supports [reversal of the BIA's decision], but compels it." Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812 (emphasis in original).
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