Tang v. U.S. Atty. Gen.

• Decision Date: 11 August 2009
• Docket Number: No. 08-12212.,08-12212.
• Citation: 578 F.3d 1270
• Parties: Lin Lin TANG, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

578 F.3d 1270

Lin Lin TANG, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 08-12212.

United States Court of Appeals, Eleventh Circuit.

August 11, 2009.

Socheat Chea, Attorney at Law, Duluth, GA, for Petitioner.

Manuel A. Palau, U.S. Dept. of Justice, Civil Div., David V. Bernal and Regina Byrd, U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before WILSON, KRAVITCH and ANDERSON, Circuit Judges.

WILSON, Circuit Judge:

Lin Lin Tang, a native and citizen of China, petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing her appeal of the Immigration Judge's ("IJ") denial of her applications for asylum, withholding of removal, and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("CAT"). 8 U.S.C. §§ 1158, 1231; 8 C.F.R. § 208.16.

I. BACKGROUND

Tang seeks protection in the United States because she claims that she has suffered persecution by the Chinese government on account of her religious beliefs, specifically on account of her participation in an unauthorized Christian house church. She fears future persecution should she return to China.

Tang was born in 1985. Her father is a transportation worker, and her mother is a director of a government family planning office. She grew up attending a government-sponsored Catholic church with her grandmother, but she left because she did not like the church. While in high school, she was introduced to an underground family church by a friend and believes that she became a Christian at that time.

The underground church met at her pastor's home, where the church members studied the Bible, sang, gave testimonies, and prayed. On December 24, 2004, she was at church when seven or eight police officers arrived, arrested her along with other church members, and took them to the police station. The police accused them of belonging to a cult and beat them with fists and batons. Tang was detained for more than 10 days, during which time she was regularly taken into a small room for interrogation and beaten. The officers instructed Tang to sign a letter of confession stating that there was no God, but only the Chinese Communist Party; she refused. Tang was finally released when her parents paid the police 5,000 RMB¹ as bond and 10,000 RMB as a guarantee that she would not participate in her religious activities.

Tang was required to report to the police station every Friday at 2:00 p.m. The police arrested her again in January, February, March, and twice in April 2005, on suspicion that she continued to belong to a family church. Each time she was arrested, she was beaten. When she was arrested in February, she was held for over a week, and when she was released, her parents had to take her to the hospital to be treated for her injuries. She was severely beaten in March when she argued with the police at the station.

Her medical records confirm that, in January 2005, Tang was bruised from beatings "in the back, hand, and feet."² She had "multiple bruises" and was "cut on [her] right wrist." Tang's medical records further report that, in March 2005, she was "beate[n] by someone," resulting in "[b]ack, chest, and foot pain with multiple bruises." Additionally, she suffered "three serious internal injuries in the back," as well as "two at the chest." Furthermore, her medical records report that she suffered "[o]ral bleeding," along with "[b]ruises on [the] right side of [her] face." As a further consequence of police brutality, Tang's medical records report that she suffered from "[v]aginal bleeding." Finally, the records state that she was treated for seven days.

Tang was so distraught from this persecution that she could no longer attend school. By the end of April 2005, Tang's mother and grandmother believed she could no longer remain in China and arranged for her to leave. Her grandmother provided her with a French passport and instructed her to leave her Chinese documentation at home. Tang alleges that she did not know that the French passport she carried was illegally altered until she was so informed by authorities in the United States. She traveled first to Japan, where she remained for a week, but did not stay because "America has more freedom," and her grandmother had arranged for her to go to the United States. While she was in Japan, she called her family, who told her that when she did not show up at the police station as scheduled, the police came to their home and beat up her parents. She then traveled on to the United States.

In her airport interview, when asked the purpose of her travel to the United States, Tang responded that she was Christian and that there were "no rights [and] no [f]reedom" in China and that the "government must approve what church you can go to." When asked to which church she belonged, she replied, "It's just family style." When asked the name of the church, she replied, "Never went to church, just go to people's houses." In her credible fear interview, she testified about her underground church, multiple arrests and beatings, and that there was nowhere else in China where she could live and be safe.

While in the United States, Tang has been living with her aunt and uncle in Andalusia, Alabama. She regularly attends the First Baptist Church in Andalusia and has spoken with the pastor about her religious persecution.

None of Tang's friends or relatives testified at her hearing before the IJ, either because they were busy or had to work. The IJ issued an oral decision in which he determined that Tang did not establish eligibility for asylum because she was not credible based on inconsistencies in her testimony as well as her demeanor. The IJ, after refusing to consider untimely filed documents, found that Tang had failed to present probative corroborating evidence. The IJ found that Tang's responses seemed "well-rehearsed," primarily because she stated, more than once, that she was detained by the Chinese police for "more than 10 days" and because she was unable to answer questions when posed in different ways. The IJ concluded that it was implausible that her mother, a "ranking member of the government of China," would either pay "bribes" to get Tang out of prison or help Tang leave China illegally, or that the daughter of a government official "would be jailed and beaten for merely being a member of a house church." The IJ noted that Tang had not mentioned her longtime, regular Catholic church attendance in either her airport interview or her credible fear interview. The IJ found it significant that she did not mention her detentions and beatings by Chinese authorities at her airport interview. Tang appealed to the BIA, on the grounds that the IJ should have accepted her documentary submissions and should not have ruled her incredible. The BIA held that Tang's documentary submissions were untimely and that Tang was incredible. Tang then petitioned this court for review, asserting the same two grounds for appeal.³

"[Where], as here, the BIA issues its own opinion, we review only the decision of the BIA, except to the extent that the BIA expressly adopts the IJ's decision." Rodriguez Morales v. U.S. Att'y Gen., 488 F.3d 884, 890 (11th Cir.2007) (per curiam). Here, the BIA issued its own opinion, without expressly adopting the IJ's opinion, but affirmed and relied upon the IJ's decision and reasoning. Therefore, we first review the IJ's opinion, to the extent that the BIA found that the IJ's reasons were supported by the record. We then review the BIA's decision, with regard to those matters on which it rendered its own opinion and reasoning.

II. DISCUSSION

A. Due Process

Tang first argues that the IJ denied her due process right to a full and fair hearing by not exercising his discretion to admit her untimely-filed supporting documents and that the BIA erred in affirming the IJ's decision. We have "jurisdiction to review substantial constitutional claims raised in the immigration context." Haswanee v. U.S. Att'y Gen., 471 F.3d 1212, 1218 (11th Cir.2006) (per curiam).

"Due process requires that aliens be given notice and an opportunity to be heard in their removal proceedings." Fernandez-Bernal v. Att'y Gen. of the United States, 257 F.3d 1304, 1310 n. 8 (11th Cir.2001). "To establish due process violations in removal proceedings, aliens must show that they were deprived of liberty without due process of law, and that the asserted errors caused them substantial prejudice." Lonyem v. U.S. Att'y Gen., 352 F.3d 1338, 1341-42 (11th Cir.2003) (per curiam). However, "the failure to receive relief that is purely discretionary in nature does not amount to a deprivation of a liberty interest." Scheerer v. U.S. Att'y Gen., 513 F.3d 1244, 1253 (11th Cir.2008) (internal quotation marks and citation omitted).

Here, Tang sought to have admitted into evidence several statements from her family and friends after the filing date set by the IJ. The record demonstrates that Tang was notified in February 2006, when she filed her asylum application, that she was to file all of her supporting documents by September 1, 2006 for a September 18, 2006 hearing. Her hearing was eventually reset for November 13, 2006. According to local rules, Tang was to file her supporting documents at least 22 days before her hearing. She had over seven months to file her documents, and she did file several documents in August 2006.⁴ Tang has not shown good cause for missing the deadline.

We conclude that the IJ's decision to exclude evidence offered for submission after a court-ordered filing deadline is discretionary. The governing regulations provide the IJ with administrative control over the removal hearing. 8 C.F.R. § 1003.31(c). The IJ "may set and extend time limits for the filing of applications and related documents and responses thereto, if any. If an application...