Yi Zhang Lin v. Garland
| Docket Number | 22-3807 |
| Decision Date | 01 September 2023 |
| Parties | Yi Zhang Lin, Petitioner, v. Merrick B. Garland, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Argued: May 17, 2023
On Petition for Review from the Board of Immigration Appeals; No. A 206 060 936.
ARGUED:
Henry Zhang, ZHANG AND ASSOCIATES, P.C., New York, New York, for Petitioner.
John F. Stanton, UNITED STATES DEPARTMENT OF JUSTICE, Washington D.C., for Respondent.
ON BRIEF:
Henry Zhang, ZHANG AND ASSOCIATES, P.C., New York, New York, for Petitioner.
John F. Stanton, UNITED STATES DEPARTMENT OF JUSTICE, Washington D.C., for Respondent.
Before: GRIFFIN, STRANCH, and DAVIS, Circuit Judges.
Yi Zhang Lin, a native and citizen of China, petitions for review of the Board of Immigration Appeals' ("BIA" or "the Board") final order affirming an immigration judge's ("IJ") denial of his requests for asylum, withholding of removal, and protection under Article III of the Convention Against Torture ("CAT"). The question before us is whether the BIA's determinations are supported by substantial evidence. As will be explained below, the BIA's rationale does not allow us to make that determination. So we grant Lin's petition and remand for further proceedings.
Lin traveled to the United States from the People's Republic of China in September 2012. Claiming he suffered persecution in China, he applied for asylum, withholding of removal, and protection under CAT within a year of his arrival. In 2016, the Department of Homeland Security ("DHS") initiated removal proceedings against Lin pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). In 2019, Lin testified before an IJ regarding the merits of his application. The following is a summary of Lin's testimony.
Lin's girlfriend became pregnant in 2001, but the two could not marry because she had not reached legal marriage age. Government family planning officials suspected that Lin's girlfriend was pregnant and went to Lin's home to search for her. Lin told the officials that his girlfriend was not pregnant, but they proceeded to "slap[] [him and] kick[] [his] stomach and legs . . . [b]ecause they want[ed] to force [him] to confess the whereabouts of [his] girlfriend." (R. 7, Administrative Record, at Page 95-96). When Lin refused to share his girlfriend's whereabouts, the officials "started smashing [his] family's furniture," and "tor[e] the gate of [his] family's door." (Id. at Page 81). Lin's "mouth and nose were bleeding . . . [his] stomach was hurting[,] and [his] legs were full of bruises" after this encounter. (Id. at Page 96). Lin did not seek medical treatment for his injuries because he considered them "just light wounds." (Id.).
Lin's girlfriend later gave birth in secret, and the couple went into hiding at Lin's sister's home in Fuzhou, China for three months. However, local officials eventually discovered their location and took his girlfriend to be forcibly inserted with an IUD. The government also imposed a fine of 40,000 yuan to obtain a household registration for their son, and a fine of 25,000 yuan for having a child out of wedlock which prevented them from marrying until they paid the fine. Lin and his girlfriend could not afford to pay these penalties when they were imposed. That said, they were later granted a complete waiver for their son's household registration fee under a one-time government amnesty program. Lin also concedes that he could now afford to pay the marriage fine if he were he to return to China, though he finds it unreasonable.
Ten years after his run-ins with local government officials relating to the circumstances of his son's birth, Lin began attending an "underground" Christian church after a childhood friend introduced him to Christianity. (Id. at Page 100). Lin was attending such a church gathering in August 2012 when the village cadre (the equivalent of police in Lin's small island village) showed up and arrested him. The cadre locked him in a very small room, interrogated him, and attempted to force him to name fellow church goers who had escaped. When he refused, the officials hit and kicked him. Lin's "mouth and nose were bleeding" and his "body was full of bruises" as a result of the beating. (Id. at Page 88). Lin managed to escape after three days of interrogation when his parents and girlfriend bribed a prison guard for his release. Lin then hid at his aunt's house in Fuzhou for 26 days before managing to flee the country. After he left China, Lin's parents told him that the village cadre continued to look for him "everywhere"-and that "they went to [his] parent's home and asked for [his] whereabouts." (Id. at Page 89). In 2017, Lin declined to attend his mother's funeral based on warnings from his father not to return to China because the village cadre continued to search for him. Lin also testified that, because he has been baptized and considers himself a "real Christian," he will continue to attend church services if removed to China because "church is [his] home." (Id. at Page 91).
B. Procedural Background
Following the merits hearing, the IJ issued a written decision denying Lin's requests for relief and protection. The IJ found Lin to be credible and afforded his testimony and documentary evidence appropriate weight. The IJ ultimately concluded that Lin did not demonstrate that the harm he experienced, on account of either his religion or his opposition to China's family planning policies, rose to the level of persecution nor that he had a well-founded fear of future persecution. The IJ also determined that DHS adequately established that relocation within China would be reasonable, and that Lin failed to rebut this evidence. His request for asylum therefore failed. Finally, the IJ concluded that Lin failed to establish eligibility for withholding of removal under 8 C.F.R. § 1208.16(b) or protection under the CAT.
Lin appealed these findings to the BIA. In September 2022, the Board issued a separate decision adopting the IJ's factual findings, upholding her conclusions, and dismissing Lin's appeal. This petition for review followed.
This court has jurisdiction to review the final decision of the Board "affirming the IJ's denial of asylum, withholding of removal, and relief under the Convention Against Torture." Singh v. Ashcroft, 398 F.3d 396, 400 (6th Cir. 2005). Where the BIA reviews the IJ's decision and issues a separate opinion, rather than summarily affirming, we review the Board's decision as the final agency determination. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). To the extent that the BIA affirms and expressly adopts the IJ's findings, however, we also review the IJ's decision. Id. We consider questions of law de novo, but owe substantial deference to the BIA's interpretation of the Immigration and Nationality Act ("INA") and accompanying regulations. Id.
We review findings of fact for substantial evidence. Gaye v. Lynch, 788 F.3d 519, 525 (6th Cir. 2015). Under the substantial evidence standard, we "defer to the agency's findings of fact if supported by reasonable, substantial, and probative evidence on the record considered as a whole." Id. (quoting Abdurakhmanov v. Holder, 735 F.3d 341, 345 (6th Cir. 2012)). That is, "[t]o reverse under the substantial evidence standard, the evidence must be so compelling that no reasonable factfinder could fail to find the facts were as the [applicant] alleged." Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir. 2005) (quoting Khodagholian v. Ashcroft, 335 F.3d 1003, 1006 (9th Cir. 2003)); see also 8 U.S.C. § 1252(b)(4)(B).
The Attorney General has discretion to grant asylum if the applicant is a "refugee" as defined in the INA. See 8 U.S.C § 1158(b)(1)(A). A "refugee" is a person who is unable or unwilling to return to his native country due to past persecution or a well-founded fear of future persecution on account of an enumerated protected ground, including religion or political opinion. See id. § 1101(a)(42). A noncitizen seeking asylum bears the burden of proving that he is a "refugee." See Koliada v. INS, 259 F.3d 482, 486-87 (6th Cir. 2001) (per curiam). Although a well-founded fear of future persecution is a basis for relief, an applicant is not eligible for asylum on that basis if he could avoid future persecution by relocating within his country of nationality, and it would be reasonable under the circumstances to do so. See 8 C.F.R § 1208.13(b)(2).
Persecution is not statutorily defined, but we have broadly explained that it involves "the infliction of harm or suffering by the government . . . to overcome a characteristic of the victim." Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010) (quoting Al-Ghorbani v. Holder, 585 F.3d 980, 997 (6th Cir. 2009)). While we have found a single incident sufficient to constitute persecution, that incident must be severe. Lumaj v. Gonzales, 462 F.3d 574, 577 (6th Cir. 2006). We have also emphasized that "[p]ersecution is an extreme concept that does not include every sort of treatment our society regards as offensive." Ali v. Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004) (quoting Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995)).
The BIA adopted and affirmed the IJ's findings-and independently reasoned-that the harm Lin experienced in China as to both his Christian practice and his violation of family planning policies fell short of persecution under the INA. We need not determine whether Lin suffered past persecution on account of his religion because, as explained below, the Board's conclusion that he failed to establish a well-founded fear of future persecution on this ground is an error that...
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