United States Court of Appeals
For the First Circuit
No. 06-2749
AIHUA CHIV WANG,
Petitioner,
v.
MICHAEL B. MUKASEY*, Attorney General
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch and Lipez, Circuit Judges
and Barbadoro**, District Judge.
William P. Joyce, on brief for petitioner.
Melissa Neiman-Kelting, Office of Immigration Litigation
Attorney, Peter D. Keisler, Assistant Attorney General, and Mary
Jane Candaux, Senior Litigation Counsel, on brief for respondent.
November 29, 2007
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Michael B. Mukasey is substituted for former Attorney General
Alberto R. Gonzales as respondent.
**
Of the District of New Hampshire, sitting by designation.
LIPEZ, Circuit Judge. Petitioner Aihua Chiv Wang, a
native of Laos and a citizen of the People's Republic of China,
petitions for review of the denial of her application for asylum,
withholding of removal, and relief under the Convention Against
Torture (CAT). She also requests that we remand the case for
reconsideration based on changed country conditions. We deny the
petition.
I.
Wang was born on February 10, 1974 in Laos and lived
there until July 5, 1990, when she arrived in Chicago, Illinois on
a tourist visa. On July 5, 1992, Wang received a student visa. As
of June 1995, she ceased to be a student but remained in the United
States without obtaining a new visa.1 In 2000, Wang received a
Notice to Appear alleging that she was removable because she failed
to maintain her student status.
At a hearing in 2005 before an Immigration Judge (IJ),
she conceded removability and applied for asylum, withholding of
removal, protection under the CAT, and, in the alternative,
voluntary departure. When Wang declined to designate a country of
removal, the IJ designated China – the only country in which Wang
1
She applied for asylum in 1994 claiming that she feared
being persecuted for her anti-communist beliefs. She has since
repudiated her statements in the 1994 asylum application, most
notably her assertions that her father was accused by the Laotian
government of being a spy for the Chinese government, that he was
sent to re-education camps in Laos for seven years, and that Wang,
herself, has a Laotian passport.
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has citizenship. See 8 C.F.R. § 1240.10(f). Wang testified that
she feared going to China because of its coercive population
control measures. Wang already has one daughter – born in 2003 as
a United States citizen – and testified that she would like to have
more children. She worries that if she were forced to live in
China, she would be unable to have more children because of China's
"one-child" policy.
Wang submitted evidence to the IJ that included U.S.
State Department Reports. These reports characterized Chinese
population control policies as restrictive, but also as highly
particularized. The 2004 Report, entitled Country Report on Human
Rights Practices, noted that enforcement of the population and
family planning laws "continued to vary from place to place" and
allowed "eligible couples to apply for permission to have a second
child if they met conditions stipulated in local and provincial
regulations." According to the 2004 Report, physical coercion was
formally prohibited as a method of enforcing family planning
policies, but economic and social penalties were allowed and
frequently used.
Based on all of the evidence presented, the IJ found that
the "Chinese government does persecute Chinese nationals who break
the coercive family planning policy of China by having more than
one child without the permission of the Chinese government." Yet,
the IJ decided that given the particularized nature of these
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policies, Wang did not demonstrate that she or someone similarly
situated would face persecution. The IJ noted that Wang had not
shown that with a foreign-born child she would be subject to the
one-child policy or that she would be persecuted for being single
and having a child.
The IJ thus concluded that the evidence provided was
insufficient to establish that (1) Wang had a well founded fear of
persecution, 8 U.S.C. § 1101(a)(42)(A), (2) she would be more
likely than not to have her life or freedom threatened if she were
removed to China, 8 C.F.R. § 1208.16(b)(2), or (3) she would be
more likely than not to be tortured by the Chinese government or
its agents, 8 C.F.R. § 1208.16(c)(2). Accordingly, the IJ denied
Wang's petition for asylum, withholding of removal, and CAT relief.
The IJ did, however, grant her request for voluntary departure.
In an appeal to the Board of Immigration Appeals (BIA),
Wang argued that the record clearly demonstrated that she would be
subject to China's coercive population control measures in spite of
her daughter's American citizenship. Wang also asserted that
because she is a single woman, she would be even more susceptible
to these coercive measures.
The BIA affirmed the IJ's decision on the ground that
Wang has only one child, who was born in the United States, and she
therefore would not presently be subject to persecution for having
more than one child. The BIA also found that the evidence was
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insufficient to support Wang's contention that single women are
persecuted in China for having children out of wedlock. It further
characterized as "speculative at present" Wang's claim that she
would be persecuted if she had additional children while living in
China.
This petition for review followed. In it, Wang argues
that the BIA erred in determining that she did not have the
requisite well founded fear of persecution to establish eligibility
for asylum. She also claims that the BIA should have found her
eligible for withholding of removal and for relief under the CAT.
In addition, Wang argues that she is entitled to a remand based on
changed conditions in China with respect to foreign-born children.
Therefore, she asks us to direct the BIA to consider this new
information.
II.
The BIA adopted the IJ's opinion and also addressed the
underlying bases for the denial of asylum. We therefore review
both the IJ's and BIA's decisions. Ouk v. Gonzalez, 464 F.3d 108,
110 (1st Cir. 2006)(finding that "we have authority to review both
the IJ's and the BIA's opinions" when the BIA adopts the IJ's
opinion and discusses some of the bases for the IJ's decision). We
review legal issues de novo and apply the substantial evidence
standard to the factual determinations. Mukamusoni v. Ashcroft,
390 F.3d 110, 119 (1st Cir. 2004). Under the highly deferential
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substantial evidence standard, we consider whether the agency's
ruling is "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." Lopez de Hincapie
v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007) (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)). We will not upset the
BIA's determination unless the record compels the contrary
conclusion. Id.
A. Asylum
To qualify for asylum, an alien needs to demonstrate that
she is a refugee by virtue of her previous persecution or her well
founded fear of future persecution based on race, religion,
nationality, membership in a particular social group, or political
opinion. 8 U.S.C. § 1158(b)(1); Berrio-Barrera v. Gonzales, 460
F.3d 163, 167 (1st Cir. 2006). We need not discuss the standard
for a finding of past persecution because Wang makes no such claim.
With regard to a fear of future persecution, the applicant must
demonstrate that she objectively has a well founded fear of
persecution on a protected ground and that this fear is genuine.
Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st Cir. 1999)(proving the
objective and subjective components of a well founded fear of
future persecution requires the petitioner to show her fear is
"both genuine and objectively reasonable"). Fear of forced
abortion or sterilization is categorized as fear of persecution on
account of political opinion. 8 U.S.C. § 1101(a)(42)("A person who
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has a well founded fear that he or she will be forced to undergo [a
forced abortion or sterilization] procedure or [is] subject to
persecution for failure, refusal, or resistance [to undergoing such
a procedure] shall be deemed to have a well founded fear of
persecution on account of political opinion."); Zheng v. Gonzales,
475 F.3d 30, 34 (1st Cir. 2007).
Wang contends that the BIA erred by relying on the IJ's
determination that her fear of persecution was unreasonable solely
because she had not been subject to past persecution. The IJ did
not base its decision exclusively on the determination that Wang
had not been subject to past persecution and, therefore, the BIA
did not err when it relied on the IJ's findings. As required, the
BIA considered the evidence in the record in order to determine
whether Wang's fear of future persecution was reasonable. After
examining the record, the BIA justifiably concluded that the State
Department's 2004 Report "indicates that only social compensation
fees have been levied on unwed mothers and that in some instances
these fees have been abolished and relaxed in other instances."
Wang also argues that the IJ and BIA erred in not giving
greater weight to her expressed intentions to have additional
children and by dismissing these intentions as "speculative." She
relies on the Second Circuit's decision in Lin v. Gonzales, 445
F.3d 127 (2d Cir. 2007), for the proposition that the IJ is
required to provide "specific, cogent reasons for discounting an
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applicant's claim [that she plans to have additional children] as
speculative" when the asserted fear of persecution is based on the
applicant's intention to have children. Id. at 136. We need not
decide whether Wang's reading of Lin is correct or whether we agree
with that reading; this principle is not at stake here.
Neither the IJ nor the BIA dismissed Wang's plans to have
additional children as speculative. Rather, both the IJ and BIA
focused on China's family planning policies and the likelihood they
would be applied in Wang's particular circumstances. The IJ said:
"[I] find that the respondent's testimony concerning wishing to
have further children if she were to go to China and that she will
be prohibited from having more children in China because of Chinese
coercive family planning policy in China, is at best speculative
and based on surmise." Similarly, the BIA determined that "to the
extent that the respondent claims that she wishes to have
additional children in the future and that she would be persecuted
in China for such births, we find the respondent's claims
speculative at present." We understand the IJ and BIA to have
found that persecution based on additional births was speculative,
not the births themselves. Thus, Wang's claim falters on the
objective prong of the well founded fear of future prosecution
analysis.
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B. Withholding of Removal and Convention Against Torture
Wang, having failed to establish her eligibility for
asylum, necessarily fails in her claim for withholding of removal.
Berrio-Barrera, 460 F.3d at 168; Rodriquez-Ramirez v. Ashcroft, 398
F.3d 120, 123 (1st Cir. 2005) (finding that because the burden of
proof necessary to establish an asylum claim is lower than the
burden of proof required to prevail on a withholding of removal
claim, "the BIA's rejection of the petitioner's asylum claim, if
sustainable, sounds the death knell for his counterpart claim for
withholding of removal"). Similarly, the BIA rightly concluded
that it had no basis for finding that Wang was eligible for relief
under the CAT because she had not proven that she was more likely
than not to be tortured upon being removed to China. See 8 C.F.R.
1208.16(c); Jiang v. Gonzales, 474 F.3d 25, 32 (1st Cir. 2007).
C. Remanding for Consideration of Changed Circumstances
In an unusual request, Wang asks in the alternative that
we remand her case to the BIA for consideration of two Second
Circuit cases that, according to Wang, conclude that parents of
foreign-born children are subject to the same rules as parents of
native-born children under Chinese family planning policies.2 The
government argues that this request is not properly before us
2
Wang cites Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006), and
Tin Ming Lin v. United States Dep't of Justice, 473 F.3d 48, 52 (2d
Cir. 2007), as "new" evidence in support of her position that
parents with two or more children are being forcibly sterilized in
China irrespective of whether the children are foreign-born.
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because Wang should have brought before the BIA a motion to reopen
pursuant to 8 C.F.R. § 1003.2. Wang does not explain why she did
not file a motion to reopen with the BIA nor does she support her
unusual request with any developed argument that we have the
authority to consider on appeal changed circumstances that might be
the basis for a remand.3 Thus, we deem this argument for a remand
waived. Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 43 (1st
Cir. 2003)("Issues raised on appeal in a perfunctory manner (or not
at all) are waived.").
III.
We conclude that the BIA justifiably denied Wang's
petitions for asylum, withholding of removal, and CAT, and that
Wang has waived her argument that we should remand for
consideration of changed circumstances.
Petition denied.
3
In Tian Ming Lin, the Second Circuit concluded that "there
is no statutory mechanism by which a party may move this Court to
remand to the BIA . . . . Nonetheless, we believe that we possess
the inherent equitable power to remand cases to administrative
agencies for further proceedings in sufficiently compelling
circumstances." 473 F.3d at 52. We take no position on this
conclusion.
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