Qiu v. Atty Gen USA

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit

1-24-2006

Qiu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1285

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 NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 05-1285
____________

HE QIN QIU

Petitioner

v.

ATTORNEY GENERAL OF
THE UNITED STATES,

Respondent
____________

On Petition for review of an Order of the Board of Immigration Appeals
INS No . A 96-108-951
Immigration Judge: Honorable Grace A. Sease
____________

Submitted Under Third Circuit LAR 34.1(a) January 13, 2005

Before: ROTH, FUENTES, and ROSENN, Circuit Judges.

(Filed January 24, 2006)
____________

OPINION OF THE COURT
____________

ROSENN, Circuit Judge.

He Qin Qiu appeals a decision of the Board of Immigration Appeals (“BIA”)

affirming without opinion the Immigration Judge’s (“IJ”) denial on February 26, 2004, of

his application for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”).

The BIA issued a per curiam order assuming the credibility of Qiu’s testimony,

but otherwise agreeing with the IJ that Qiu had not met his burden of proving eligibility

for asylum, 8 U.S.C. § 1158(b)(1)(B)(i), withholding of removal, 8 U.S.C. § 1231(b)(3),

or relief under the CAT, see 8 C.F.R. § 1208.16(c). The BIA accordingly dismissed

Qiu’s appeal.

Qiu timely appealed the decision of the BIA. We have jurisdiction under 8 U.S.C.

§ 1252(b)(2) & (d). Qiu argues that he established a well-founded fear of persecution

making him eligible for asylum. Specifically, he contends that the BIA and IJ erred in

finding that he had failed to establish persecution on the basis of membership in a

disfavored class, arguing that his persecution was based on membership in his family,

which qualifies as a “social group” for the purposes of 8 U.S.C. § 1101(a)(42)(A). He

also argues that the IJ’s finding that he could safely relocate within China, making him

ineligible for asylum under 8 C.F.R. § 1208.13(b)(2)(ii), was not supported by substantial

evidence. Finally, Qiu argues that the BIA erred in denying his request for relief under

Article III of the CAT based on the IJ’s finding that he would not be subject to torture “by

or at the instigation of or with the acquiescence of a public official or person acting in an

official capacity.” Qiu argues that he has proven a likelihood of torture at the hands of

the Chinese government and that he should be protected under the CAT.

We deny the petition for review because the BIA’s conclusions that Qiu failed to

establish a well-founded fear of persecution or a likelihood of torture are supported by

2
substantial evidence on the record.

I.

Qiu is a twenty-one-year old native of the People’s Republic of China. He left

China in March of 2003, traveling a circuitous path to the United States, which led him

through Hong Kong, Israel, the Dominican Republic, and finally, Puerto Rico, where he

was apprehended by the Immigration and Nationalization Service on August 26, 2003.

He was charged with removability under INA § 212(a)(6)(A)(i), 8 U.S.C. §

1182(a)(6)(A)(1) (illegal entry). At a hearing before an IJ in Puerto Rico on September

23, 2003, Qiu conceded that he was a citizen of China, and that he had entered Puerto

Rico illegally and without valid papers, and the IJ found him removable. He was then

sent to York, Pennsylvania, where he remains incarcerated. Qiu’s petition for asylum,

withholding, and relief under the CAT was heard on February 26, 2004.

Because the BIA assumed the truth of Qiu’s testimony in affirming the IJ’s

decision, we also accept it as true for the purposes of this appeal. Qiu is from the village

of Hujiang, Fujian Province. In August of 2002, his father was unemployed and incurred

a large gambling debt to the village chief, totaling approximately 360,000 yuan

(equivalent to about 45,000 U.S. dollars). The village chief threatened to arrest Qiu and

hold him hostage in order to force his father to pay the debt.

Subsequently, on the evening of October 5, 2002, the village chief came to Qiu’s

family home with some of his henchmen and demanded repayment of the debt. They

threatened his father and told him that if the debt was not repaid, they would chop off

3
Petitioner’s arms and legs. They also told his father that if he reported the threats to the

authorities he would “have bigger problems.” Qiu’s mother immediately took him to

another part of the village to hide him. His father also went into hiding, where he

remains. His mother and one of his sisters reside with a friend in a nearby village. The

village chief continues to search for petitioner.

The incident was never reported to the authorities. Qiu remained in hiding until

his mother made arrangements for him to leave China. His mother borrowed money from

friends to pay a smuggler to get Qiu out of the country, but he stated that he does not

think his mother could have borrowed money in order to pay off his father’s gambling

debts. He also stated that if he returns to China, the village chief and his henchmen will

“give [him] problems.”

Qiu also submitted documentary evidence. He submitted a Household Register

demonstrating that he was registered in the village and province that he had stated he was

from. He also submitted a sworn statement and two letters, one from his mother and one

from a woman to whose home Qiu’s mother had taken him on the night of the incident in

which he and his father were threatened. The Government submitted two State

Department reports on China and a United Kingdom Home Office Assessment.

The letter from Qiu’s mother (the authenticity of which the IJ doubted,1 but which

1
The IJ stated in his opinion: “[T]hese letters have all the indicia of being fabricated . . .
. They both seem to say essentially the same thing as if they were written or fabricated by
the same hand. The letter from [the neighbor] essentially repeats almost word for word
everything said in the letter from the mother. There is no indicia of reliability in these
4
we accept as authentic for the purposes of deciding this petition) reiterates the events

testified to by Qiu. She states that after the village chief came to her home and uttered the

threats, she took her son to the home of a friend, Chen Hua, for hiding. But the family

ultimately determined that it was “not a solution to hide there forever,” and that Qiu

would have to leave China. Qiu’s mother stated that with help from friends and relatives,

they were able to get him out of China about six months later.

The other letter submitted by Qiu is from Chen Hua, in whose home Qiu hid.

Chen Hua states in the letter that Qiu’s mother came to the house crying, and told her of

the incident and her husband’s gambling debts. She agreed to hide Qiu, and he stayed

there until he left China.

The IJ denied Qiu’s claim for asylum, withholding of removal and relief under

Article III of the CAT in an oral decision affirmed by the BIA without opinion on January

13, 2005. The IJ expressed reservations about Qiu’s credibility and the authenticity of the

letters submitted by Qiu in support of his claims.

The IJ also found that the documentary evidence submitted by the Government,

including the State Department and United Kingdom reports, undercut Qiu’s credibility.

The IJ noted China’s large population, which includes a large “floating population,” or

persons not residing at their registered addresses, and observed that “[i]nternal flight is a

very real alternative in this case.” The IJ found that Qiu had failed to establish that he

letters. We know they were sent from China and that’s about it. They are not sworn to.”
5
was being persecuted on the basis of his race, nationality, religion, or membership in a

particular social group, because “[t]he only social group that he might possibly be

identified under is that of a young man whose father apparently was a gambler and lost

money to someone who was in a position of authority.” The IJ also noted that Qiu had

failed to seek the help of government authorities and that he had not suffered any past

persecution.

The IJ rejected Qiu’s claims for withholding of removal, which requires a higher

showing of a likelihood of persecution than a claim for asylum, and his claim for relief

under the CAT, stating that Qiu “has not established that he would be subject to torture by

or at the instigation of or with the consent or acquiescence of a public official or person

acting in an official capacity.”

II.

Because the BIA affirmed without opinion, we review the IJ’s opinion under the

same standards of review as we would a decision of the BIA. Abdulai v. Ashcroft, 239

F.3d 542, 549 n.2 (3d Cir. 2001). The BIA noted in its order affirming the IJ’s decision

that “[e]ven accepting the respondent’s testimony as true, we agree with the Immigration

Judge that the respondent has not met the burden of proving eligibility for asylum,

withholding of removal, or relief under the CAT,” so for the purposes of this appeal, we

accept Qiu’s testimony as true. See Kayembe v. Ashcroft, 334 F.3d 231, 234–235 (3d

Cir. 2005). Accordingly, we have no credibility finding to review. Id. at 235.

A grant or denial of asylum is reviewable for abuse of discretion. Reynoso-Lopez

6
v. Ashcroft, 369 F.3d 275, 278 (3d Cir. 2004). The IJ’s factual determinations should not

be overturned unless a reasonable factfinder would be compelled to conclude to the

contrary. Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001). We review questions of

law de novo. United States v. Torres, 383 F.3d 92, 95 (3d Cir. 2004).

An alien is eligible for asylum if he or she is a refugee within the meaning of 8

U.S.C. § 1101(a)(42). A refugee is someone who “is unwilling or unable to avail himself

. . . of the protection of [his native country] because of persecution or a well-founded fear

of persecution on account of race, religion, nationality, membership in a particular social

group, or political opinion . . . .” 8 U.S.C. § 1101(a)(42)(A). A showing of past

persecution gives rise to a rebuttable presumption that the alien has a well-founded fear of

future persecution.” 8 C.F.R. § 1208.13(b)(1). An alien who does not establish past

persecution may establish a well-founded fear of future persecution if he demonstrates a

that he has a genuine, subjective fear of persecution and that a reasonable person in his

circumstances would fear persecution if returned to his native country. Abdulrahman v.

Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003).

The IJ made several findings that, on their own, are sufficient to disqualify Qiu for

asylum. First, the IJ found that Qiu had not been subject to persecution on the basis of his

membership in a “social group” within the meaning of 8 U.S.C. § 1101(a)(42)(A).

Secondly, the IJ held that Qiu had not established a well-founded fear of persecution.

Finally, the IJ held that Qiu could relocate safely within his country of origin, which

makes an alien ineligible for asylum under 8 C.F.R. § 1208.13(b)(2)(ii).

7
 In order to establish eligibility for asylum on the basis of membership in a

particular social group, an alien must identify the social group, demonstrate that he is a

member of that social group, and that he was persecuted on the basis of membership in

the group. See, e.g., Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir. 2003). This

Circuit has adopted the BIA’s definition of “social group,” as a “group of persons all of

whom share a common, immutable characteristic.” Lukwago, 329 F.3d at 171 (quotation

omitted).

Qiu argues that the IJ erred in failing to consider his family as a social group for

the purposes of determining his eligibility for asylum.2 It does not appear that Qiu raised

this argument before the IJ. Nor did he indicate that he was seeking asylum on this basis

on his asylum application, on which he checked only boxes for asylum based upon

political opinion and withholding of removal under the CAT.

Even if he did not waive this argument, however, the petition for review should be

2
This Court has adopted the BIA’s recognition that kinship ties are an “innate” “shared
characteristic.” In re Acosta, 19 I.&N. Dec. 211, 233 (1985), overruled in part by In re
Mogharrabi, 19 I.&N. Dec. 439 (1987); accord Singh v. Gonzales, 406 F.3d 191, 196 n.5
(3d Cir. 2005). Kinship is not a vague, all-encompassing, or amorphous category such as
courts have rejected as constituting social groups within the meaning of the asylum
statute. See, e.g., Escobar v. Gonzales, 417 F.3d 363, 367 (3d Cir. 2005) (Honduran
street children were not a “social group” within the meaning of the asylum statute);
Lukwago, 329 F.3d at 178 (children as a whole was too large and diverse a group to
constitute a “social group,” but former child soldiers who had escaped captivity could
constitute a “social group” because of their shared past experience). Accordingly, Qiu’s
family does qualify as a “social group” within the meaning of 8 U.S.C. § 1101(a)(42)(A).
Accord Chen v. Ashcroft, 289 F.3d 1113, 1115 (9th Cir. 2002); Gebremichael v. INS, 10
F.3d 28, 36 (1st Cir. 1993).
8
denied because the IJ’s decision rests on two additional grounds, each of which is

adequate on its own to sustain the decision – Qiu’s failure to meet his burden to establish

a well-founded fear of persecution, and the IJ’s finding that he could safely relocate

within China, and was therefore not eligible for asylum.

The IJ found that Qiu had not established a well-founded fear of persecution. He

alleged no evidence of past persecution. Accepting his testimony as true, it is not

sufficient to establish an objective fear of future persecution. Abdulrahman, 330 F.3d at

592. Persecution includes threats to life, confinement, torture, and economic restrictions

so severe that they constitute a real threat to life or freedom. Lin v. INS, 238 F.3d 239,

244 (3d Cir. 2001). Although Qiu was indeed threatened with serious harm and loss of

freedom, it appears from the record that Qiu and his family could have taken other steps

to avoid the threat. For example, they could have reported the threats to the authorities.

Qiu claims that the village chief threatened him if he reported the incident to the

authorities. But Qiu and his family could have sought help at a higher level of

government. They made no attempt to do so. Instead, they immediately went into hiding,

and although they managed to raise the money to pay a smuggler, they apparently did not

attempt to raise money to pay off the gambling debt, a much more direct way to address

the threat. None of Qiu’s documentary evidence tends to provide objective support for

his claim. Accordingly, Qiu has not supported his subjective fear of persecution with

“‘objective evidence that persecution is a reasonable possibility.’” See Lin, 238 F.3d at

244 (quoting Chang v. INS, 119 F.3d 1055, 1066 (3d Cir. 1997)); Abdulai, 239 F.3d at

9
553–554 (holding that the BIA may require otherwise credible aliens to provide

corroborating evidence for their claims in some cases).

Finally, as the IJ observed, whatever persecution Qiu suffered was not done by a

government actor acting within the scope of his official duties. Rather, even accepting

that the village chief was a public official, he was not acting in his official capacity, but as

a “result of personal animosity as opposed to government animosity.” There is no

evidence that the Chinese government was unwilling or unable to address this threat

because Qiu never sought the help of governmental authorities. See Abdulrahman, 330

F.3d at 592.

The IJ also found that Qiu was ineligible for asylum because he could safely

relocate within China. 8 C.F.R. § 1208.13(b)(2)(ii) (“An applicant does not have a well-

founded fear of persecution if [he] could avoid persecution by relocating to another part

of [his] country of nationality . . . if under all the circumstances it would be reasonable to

expect [him] to do so.”). Qiu presented no evidence or convincing arguments to

contradict the IJ’s finding that he could safely relocate. Contrary to his contention in his

brief that “the background documents show that China’s strict household registration

system . . . would make it virtually impossible for Mr. Qiu to safely relocate to another

part of China,” the background documents demonstrate that the household registration

system does not totally prohibit relocation and that “the ability of most citizens to move

around the country to work and live [has] continued to improve.” U.S. Dep’t of State,

Bureau of Democracy, Human Rights & Labor, Country Reports on Human Rights

10
Practices: China, at 22–23 (2002). They also establish that Chinese who have left China

illegally and returned are subject to moderate fines but not generally punished severely

unless they are alien smugglers. This defeats Qiu’s argument that he would suffer

reprisals from the government if he is returned to China. See U.S. Dep’t of State, Bureau

of Democracy, Human Rights & Labor, China: Profile of Asylum Claims & Country

Conditions, at 41 (1998).

Accordingly, the IJ’s determination that the threats aimed at Qiu and his family did

not rise to the level of persecution is supported by substantial evidence and will be

upheld. Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004). Qualification for withholding

of removal requires an alien to demonstrate by a clear probability that, on return to his

home country, his life or freedom would be threatened on the basis of his race, religion,

nationality, membership in a particular social group, or political opinion. 8 U.S.C. §

1231(b)(3)(A). This is a higher standard than that required for asylum. Accordingly, the

IJ did not err in denying Qiu’s claim for withholding of removal. See Wang v. Gonzales,

405 F.3d 134, 139 (3d Cir. 2005).

Finally, Qiu has not demonstrated that it is “more likely than not” that he will be

tortured if returned to his country, entitling him to relief under the CAT.3 8 C.F.R. §

3
Article 3 of the Convention Against Torture prevents a court from returning an alien to
a country “where there are substantial grounds for believing that he would be in danger of
being subjected to torture.” 1984 United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, G. A. Res. 39/46, U. N. GAOR,
39th Sess. Supp. No. 51, at 197, U. N. Doc. A/39/51 (1984) (“CAT”). Article I of the
CAT defines torture as:
11
1208.16(c)(2); Berishaj v. Ashcroft, 378 F.3d 314, 332 (3d Cir. 2004). A CAT claim

requires an alien to establish by objective evidence that he is likely to be tortured in the

future. Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003). The IJ’s determination

that Qiu did not prove a likelihood of torture is a factual determination, which we review

to determine whether it is supported by substantial evidence on the record considered as a

whole. INS v. Elias-Zacharias, 502 U.S. 478, 481 (1992); Zhang v. Gonzales, 405 F.3d

150, 155 (3d Cir. 2005).

In this case, Qiu’s claim that he is likely to be subject to torture falls short for the

same reasons as his claims for asylum and withholding of removal. As explained above,

there appear to be many options for Qiu to protect himself from the threats aimed at him

by the village chief, including reporting them to superior authorities, borrowing money to

pay back his father’s gambling debt, or relocating within China. In addition, the CAT

provides for withholding of removal when torture “is inflicted by or at the instigation of

[A]ny act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person information or
a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating
or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity. It does not include pain or suffering arising
only from, inherent in or incidental to lawful sanctions.
Id.; see also 8 C.F.R. § 1208.18(a) (incorporating and elaborating on this definition of
torture).
12
or with the consent or acquiescence of a public official or other person acting in an

official capacity.” CAT, Art. I; 8 C.F.R. § 1208.18(a)(1) (emphasis added). The village

chief was acting out of a personal motivation, not in his official capacity. Accordingly,

we see no facts in this case which would compel us to disagree with the IJ’s

determination that Qiu had not demonstrated a likelihood of torture. See 8 U.S.C. §

1252(b)(4)(B); INS v. Elias-Zacharias, 502 U.S. 478, 481 (1992).

III.

For the foregoing reasons, the petition for review is denied.

13