Rui Yang v. Holder

• Citation: 664 F.3d 580
• Decision Date: 12 December 2011
• Docket Number: No. 10–60745.,10–60745.
• Parties: RUI YANG, Petitioner, v. Eric H. HOLDER, United States Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

664 F.3d 580

RUI YANG, Petitioner,

v.Eric H. HOLDER, United States Attorney General, Respondent.

No. 10–60745.

United States Court of Appeals, Fifth Circuit.

Dec. 12, 2011.

Rui Yang, Dallas, TX, pro se.

Gregory Michael Kelch, Tangerlia Cox, William Clark Minick, Trial Atty., U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.

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

Before HIGGINBOTHAM, DAVIS and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Rui Yang petitions for review of an order issued by the Board of Immigration Appeals (“BIA”). Yang, a citizen of China, applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), on the grounds that he fears persecution if he returns to China because his family practices Falun Gong. The immigration judge (“IJ”) denied Yang's application and the BIA dismissed his appeal of the denial. We DENY the petition for review.

I.

Rui Yang arrived in the United States on September 2, 1998, on a J–1 visa to participate in a high-school exchange program. On January 24, 2002, his visa was changed to an F–1 student visa so he could attend college. Because he no longer had the money to afford it, he stopped attending school on June 24, 2002.

Yang applied for asylum, withholding of removal, and protection under CAT on November 28, 2001, after learning that his father faced prosecution in China for advocating the spiritual movement Falun Gong.¹ Yang received an interview in connection with his application, but he did not hear anything after the interview. While waiting to learn the disposition of his application, Yang moved from Los Angeles to Dallas.

A notice to appear was issued on the basis of Yang's failure to comply with visa requirements and mailed to his Los Angeles address.² Because Yang did not receive the notice and therefore did not appear, he was ordered removed in absentia on March 10, 2006. He then filed a motion to reopen his case, arguing that he had not received a decision regarding his 2001 application for asylum. This motion was granted and his application for asylum was transferred to Dallas.

Yang appeared before an IJ on November 26, 2007, and explained that he did not have a lawyer. He received a continuance until March 17, 2008, to seek an attorney to represent him, and then, because he had not yet located an attorney by that date, he received another continuance until May 19, 2008. At his May 19 hearing, the IJ determined that Yang had “failed to maintain and comply with conditions of [his] changed status.” Although Yang still had not obtained an attorney, the IJ scheduled a hearing before another IJ to allow Yang to present his case for asylum.

Yang's asylum hearing was held on October 27, 2008. No attorney appeared on Yang's behalf before the IJ in this proceeding. At the hearing, Yang testified that he feared Chinese authorities would arrest him if he returned to China. Yang explained that while he himself practices Christianity and not Falun Gong, his parents practice Falun Gong. In response to Chinese repression of Falun Gong, Yang said that he had sent pro-Falun Gong articles to his parents that his parents had distributed in China. These materials, Yang contended, caused Chinese authorities to arrest his father.

Yang testified that he believes the Chinese authorities want to harm him because of his support for Falun Gong. The Chinese police have not made any contact with Yang. Nevertheless, Yang said that the authorities are aware that he transmitted pro-Falun Gong materials to his parents because the police would have found envelopes containing Yang's return address when they searched the house of Yang's family. Yang further maintained that he fears physical harm should he return to China because of his previous support for Falun Gong. During the year in which Yang's father was detained, Yang testified, the Chinese authorities beat his father, and they released him only because Yang's uncle paid a bribe to government officials. Yang said his father had not been detained or physically harmed by the Chinese authorities since his year-long detention ended, but his father had been required to meet periodically with government officials to reaffirm his disapproval of Falun Gong. At the present time, according to Yang, his parents are still in China but suffer from a number of medical ailments.

During the hearing before the IJ, Yang did not present evidence specifically corroborating his testimony. He maintained that the Chinese authorities did not issue any paperwork when they charged, arrested, or released his father because the government does not issue paperwork in cases related to Falun Gong. While Yang speaks regularly to his parents by telephone, he informs this court that he not did not seek letters from his family because he did not think they would be considered by the IJ. Yang told the IJ that he had reports corroborating his parents' medical condition, but he had left them at his apartment. When it became clear during the hearing that the IJ wanted more corroborating evidence, Yang offered to retrieve the medical reports and to gather more information. The IJ refused, however, to provide a continuance for Yang to seek letters from his family members, explaining that Yang's application had been pending for two years and he had received assistance from two attorneys in preparing the application. While Yang did not corroborate the specific aspects of his story, his testimony was corroborated in general terms by the State Department's country report on China, which details a “crackdown” on Falun Gong and cites reports of 3,000 members of Falun Gong dying from torture in the last decade in China.

On October 31, 2008, the IJ denied Yang's application for asylum, withholding of removal, and protection under CAT. In explaining his denial of Yang's application for asylum, the IJ cited Yang's failure to provide documentary evidence pertaining to his father's arrest, statements from his parents or uncle, or documentation of his contention that the Chinese authorities intended to arrest him. The IJ also ruled that Yang's “evidence fails substantively and legally, as it fails to establish a nexus between one of the 5 bases of the Act and his asserted persecution.” Because Yang had failed to establish that he was eligible for asylum, the IJ further determined that he had failed to meet the higher standards for withholding of removal and protection under CAT. Finally, the IJ ruled that Yang was not entitled to voluntary departure, explaining that Yang had not requested voluntary departure and did not meet the standard for voluntary departure in any event.

The BIA affirmed the IJ's decision. The BIA ruled that Yang “did not provide sufficient documentation to corroborate his claim.” While acknowledging that Yang's contention that he was unable to provide official documentation of his arrest “may be valid,” the BIA held that Yang could have provided statements from his parents “detailing the father's detention, the search of their house, and the alleged charge against [Yang],” as well as a statement from his uncle “who [Yang] claimed was the person responsible for obtaining his father's release.” Such statements “were reasonably available,” the BIA explained, “and it was reasonable to expect such evidence to corroborate the material aspects of [his] case.” Thus, the BIA held that Yang “failed to meet [his] burden of proof because [he] has not provided sufficient evidence of the foundation of [his] claim.” The BIA also ruled that Yang failed to meet the higher burden of showing that he was entitled to withholding of removal or protection under CAT. The BIA did not address the IJ's determination that Yang did not qualify for voluntary departure or that Yang had not established a well-founded fear of future persecution.

Yang subsequently petitioned this court to review the BIA's order. In support of his petition for review of the BIA's order, Yang includes a notice translated from the Chinese purporting to show that Yang faces charges of slander against the Chinese government on account of his support for Falun Gong. This notice, which post- dated the BIA's order, was not submitted to the IJ or BIA.

II.

On appeal, Yang argues that the BIA erred by concluding that he had failed to prove that he was a refugee.³ Specifically, he challenges the BIA's determination that his failure to provide corroborating evidence provided a sufficient rationale for the BIA to deny his application for asylum, even without making a determination about his credibility. This challenge implicates two questions that we have jurisdiction to consider: first, whether, as a matter of law, it is permissible for the BIA to deny an application for asylum based solely on petitioner's failure to submit evidence corroborating his testimony; and second, whether the BIA reasonably applied this rule when considering Yang's application. Yang also contends that the BIA erred by denying his request for withholding of removal and protection under CAT.

A.

“We review factual findings of the BIA and IJ for substantial evidence, and questions of law de novo, giving considerable deference to the BIA's interpretation of the legislative scheme it is entrusted to administer.” Zhu, 493 F.3d at 594 (internal quotation marks and citation omitted). We review the order of the BIA and the ruling of the IJ to the extent it influences the order of the BIA. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.1997).

B.

We first address whether Yang's failure to submit corroborating evidence justifies the denial of his application for asylum. To be eligible for asylum, an applicant must establish that he is a “refugee.” 8 C.F.R. § 1208.13(a). A person is a refugee if he has suffered past persecution or has a well-founded fear of future persecution. Id. § 1208.13(b). To establish a well-founded fear of future persecution, an...