Yan Lan Wu v. Ashcroft, 03-3761.

• Decision Date: 04 January 2005
• Docket Number: No. 03-3761.,03-3761.
• Citation: 393 F.3d 418
• Parties: YAN LAN WU Petitioner v. John ASHCROFT, Attorney General of the United States.
• Court: U.S. Court of Appeals — Third Circuit

393 F.3d 418

YAN LAN WU Petitioner v. John ASHCROFT, Attorney General of the United States.

No. 03-3761.

United States Court of Appeals, Third Circuit.

Argued October 26, 2004.

Filed January 4, 2005.

COPYRIGHT MATERIAL OMITTED

Marco Pignone, III, (Argued), Wilson & Pignone, Philadelphia, PA, for Petitioner.

David E. Dauenheimer, (Argued), Richard M. Evans, Douglas E. Ginsburg, Lyle D. Jentzer, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before NYGAARD, AMBRO and VAN ANTWERPEN, Circuit Judges.

OPINION

VAN ANTWERPEN, Circuit Judge.

Before us is a Petition for Review of a decision by the United States Department of Justice Board of Immigration Appeals ("the Board") affirming the conclusion of an Immigration Judge that an applicant did not qualify for asylum or withholding of removal because of alleged religious persecution within the People's Republic of China. The question before us is whether the denial of an asylum application is supported by substantial evidence where an applicant, in an initial interview, articulated a fear of persecution from `people' but, in later testimony before an Immigration Judge, indicated it was police and local officials who had persecuted her. For the foregoing reasons, we shall grant this Petition to the extent that we remand for clarification of certain findings.

I

Yan Lan Wu is a native and citizen of China,¹ and is a Christian. She entered the United States on January 30, 2001 via an airline flight originating in Sao Paolo, Brazil.² When she refused to board an airplane bound for Thailand, and it was discovered that she had no travel documentation, she was taken into custody by immigration officials. When questioned by an immigration officer, Ms. Yan stated, through an interpreter, that she feared she might be incarcerated if she returned to China because she was a Christian. She was asked who was harassing her because of her religious beliefs, and replied "only the people in the village." The officer found Ms. Yan inadmissible and processed her for removal.

Ms. Yan applied for asylum, withholding of removal, and request for relief under Article 3 of the United Nations Convention Against Torture on July 31, 2001, and later testified before Immigration Judge Rosalind Malloy in support of her application on January 23, 2002. Ms. Yan testified that she and her family spread the message of Christianity to the people of her home city. They distributed religious literature, and held Christian activities such as Bible study, prayer, and the singing of religious songs, usually within the family home. On or about September 15, 2000, it was discovered that Ms. Yan's family was practicing Christianity in an otherwise Buddhist area. The police were called and broke up a religious service taking place in the family home. Ms. Yan's father was arrested, as were three or four others. Upon their release, several of the detainees complained of being beaten while in custody.

Despite the hostility of the non-Christian population, Ms. Yan and her family resumed holding religious activities. On September 28, 2000, on returning from a relative's home out of town, Ms. Yan and her family were informed that many of the Christian parishioners in her village were being arrested by village officials and that these officials wanted to arrest her family. They also learned that village officials had already entered her home. Ms. Yan and her family returned to the relative's home, where they remained for approximately one month. When they inquired about returning to their home village, the family was informed that their house had been sealed and that village officials were prepared to arrest them if the family was caught. Thereafter, Ms. Yan left China, arriving in the United States approximately three months later.

The Immigration Judge found that Ms. Yan failed to establish she had suffered persecution at the hands of the Chinese government. Thus, Ms. Yan's requests for asylum, withholding of removal, and protection under the Convention Against Torture were denied, and she was ordered removed to China. Ms. Yan appealed this decision to the Board, arguing that she had established a history of past persecution, had a well-founded fear of future persecution, and that the Immigration Judge erred in determining that any hardship she and her family had suffered was at the hands of local civilians, not the Chinese government. On August 28, 2003, the Board affirmed the Immigration Judge's decision without opinion pursuant to 8 C.F.R. § 1003.1(e)(4), thus making the Immigration Judge's decision the final agency determination. Ms. Yan filed a motion to reconsider the Board's determination, which was denied. This appeal followed.

II

We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). This Court's jurisdiction over final orders of removal generally leads us to review the decision of the Board. However, in cases in which the Board merely adopts the Immigration Judge's opinion, we will review that Immigration Judge's decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002). Our scope of review in this case is narrow: we will affirm any findings of fact supported by substantial evidence. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir.2001). We are thus bound by the administrative findings of fact unless a reasonable adjudicator would be compelled to arrive at a contrary conclusion. 8 U.S.C. § 1254(b)(4)(B) (1999); see also Abdille v. Ashcroft, 242 F.3d at 483. Finally, this Court gives Chevron deference to the Board's reasonable statutory interpretations. Chevron U.S.A., Inc. v. Natural Res. Def. Council Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, "deference is not due where findings and conclusions are based on inferences or presumptions that are not reasonably grounded in the record, viewed as a whole." Balasubramanrim v. I.N.S., 143 F.3d 157, 162 (3d Cir.1998).

III

As a threshold matter, we address the Government's contention that we are without jurisdiction to hear this appeal because Ms. Yan has not exhausted the administrative remedies available to her. The Government asserts that Ms. Yan "intimates that the Immigration Judge's reliance on the [airport] statement was misplaced" but that "this argument was never raised before the Immigration Judge or on appeal to the Board, and thus [Ms. Yan] has failed to exhaust her administrative remedies."

8 U.S.C. § 1252(d) requires an alien to raise and exhaust all remedies available to her in order to preserve her right to appellate review of a final order of removal. Abdulrahman v. Ashcroft, 330 F.3d 587, 594-5 (3d Cir.2003). In her Notice of Appeal to the Board, Ms. Yan argued that "the Immigration Judge ignored the fact that [her] father was jailed and tortured by the Chinese government as an underground Christian in China, and erred in finding that [she] doesn't have a fear of [the] Chinese government but the local people." (R. at 110.)³ Additionally, Ms. Yan contended in her brief in support of her Notice of Appeal to the Board that she has "presented sufficient evidence to the effect that she has face[d] past persecution and will face future persecution on account of her Christian faith," that "police raided [her] home," and that her "home was under surveillance." (R. at 81-88.) As we recently held in Bhiski v. Ashcroft, 373 F.3d 363, 367-68 (3d Cir.2004), so long as an immigration petitioner makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted her administrative remedies. In Bhiski, the petitioner failed to file a brief in support of his Notice of Appeal. We found that when a claim is not so complex as to require a supporting brief, simply putting the Board on notice through a Notice of Appeal is sufficient. While the Government is technically correct that Ms. Yan did not explicitly argue that the Immigration Judge erred in considering only her airport interview, she did contend in her Notice of Appeal that the Immigration Judge's conclusion is not supported by substantial evidence within the record. The Board, therefore, was put on notice that there was a claim of error hovering around the Immigration Judge's findings and, consequently, her exclusive reliance on the airport interview, during its review de novo. While it is always preferable for a petitioner to articulate his or her argument before the Board in an unambiguous manner, we are confident that Ms. Yan's Notice of Appeal and brief in support of her application made the Board aware of what issues were being appealed.⁴ Thus, Ms. Yan has satisfactorily exhausted the remedies that were available to her, and we reject the Government's argument that we are without jurisdiction to hear this appeal.

IV

We turn now to the merits of Ms. Yan's case. Congress has delegated to the Attorney General the power to grant asylum to an alien who meets the definition of refugee.⁵ 8 U.S.C. § 1158(b)(1) (1999). An alien seeking asylum must demonstrate "(1) an incident, or incidents, that rise to the level of persecution; (2) that is [or are] `on account of' one of the statutorily-protected grounds; and (3) is [or are] committed by a government or forces a government is either `unable or unwilling' to control." See Abdulrahman v. Ashcroft, 330 F.3d at 592 (quoting Gao v. Ashcroft, 299 F.3d at 272). If past persecution is not established, an alien must, in order to seek asylum, establish a subjective "well-founded fear" of future persecution that is objectively reasonable. See Gao v. Ashcroft, 299 F.3d at 272. Therefore, aliens have the burden to establish they are eligible for asylum. See Id. In contrast to the discretionary relief available to asylum seekers, an alien is entitled to withholding of removal if his life or freedom would be threatened because of race,...