UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2064
SHAO LAN YAN, a/k/a Shaolan Yan,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 21, 2012 Decided: November 27, 2012
Before DUNCAN, AGEE, and DIAZ, Circuit Judges.
Petition denied by unpublished per curiam opinion.
ARGUED: Gary Jay Yerman, YERMAN & ASSOCIATES, LLC, New York, New
York, for Petitioner. Nancy Kwang Canter, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Tony West, Assistant Attorney General, Civil Division,
Jennifer P. Levings, Senior Litigation Counsel, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shao Lan Yan, a native and citizen of the People’s Republic
of China, petitions for review of an order of the Board of
Immigration Appeals (“the Board”) dismissing her appeal from the
immigration judge’s (“IJ”) denial of her requests for asylum and
withholding of removal. For the reasons set forth below, we
deny the petition for review.
I.
Yan arrived in the United States in June 2003 and did not
possess valid entry documents. The Department of Homeland
Security (“DHS”) detained her at the Miami International
Airport. In an interview conducted at the airport, Yan claimed
that she was seeking political asylum because she had left China
to “[a]void getting married with a guy.” (J.A. 6.)
A few days later, an asylum officer conducted a credible
fear interview. Yan explained that the village chief's nephew
had come to her parent's house and asked for her parents’
permission to marry her. Her parents denied permission, at
which point the nephew became angry, vandalized their home, and
kicked her younger brother when he tried to intervene. Yan
claimed that the nephew returned with some of his friends
several days later and that she agreed to marry him so that he
would not vandalize her parent’s home again. Even so, the
2
nephew’s friends destroyed some of her parents’ personal
belongings. Yan stated that she did not report these incidents
to the local police because the village chief is a government
official, and they “protect each other.” (J.A. 13.) Because
Yan did not want to marry the village chief’s nephew, Yan
decided to flee China. Yan stated that she feared returning to
China because forced marriages are common, and she might be
forced to marry the village chief’s nephew.
The asylum officer referred Yan’s case to an IJ, and the
DHS commenced removal proceedings by issuing a Notice to Appear,
charging Yan with removability as an alien not in possession of
a valid entry document. Before an IJ in New York, New York, Yan
conceded removability and sought relief in the form of asylum
and withholding of removal; she waived the right to seek
protection under the Convention Against Torture.
Yan subsequently filed an application for asylum and
withholding of removal. There, Yan asserted for the first time
that she had been forced to undergo an abortion in China. She
claimed that her pregnancy violated China’s birth control policy
because she did not have a marriage registration or a birth
permit, and that despite her pleas to keep her unborn child, the
clinicians forcibly terminated her pregnancy. Yan also
reiterated her claim that the village chief’s nephew had sought
to marry her, and had vandalized her parents’ home when she
3
refused. Yan asserted that she feared she would “be forced to
marry a person [she] do[es] not love and do[es] not wish to
marry” if she returned to China. (J.A. 69.)
Yan attached several documents to her application,
including a letter from her mother describing Yan’s forced
abortion and the village chief’s nephew’s attempts to marry her,
and a letter from her boyfriend describing the same.
The IJ held a hearing on the merits of Yan’s claims for
relief. When asked why she did not mention the abortion during
her initial or credible fear interviews, Yan stated that the
abortion “has been a long time already,” and that during the
interview she was “quite scared and what [she] said was not very
complete.” (J.A. 338-39.)
With respect to the forced marriage claim, Yan’s
allegations regarding the nephew’s visits to her parents’ house
echoed her prior statements, except that for the first time she
stated the nephew visited the home a third time, after she fled
China. She claimed that once the village chief’s nephew
realized she had left, “he threw a few things . . . and ate in
[her parents’] home. He ate for free.” (J.A. 357.) Yan
“d[id]n’t know” why she failed to mention this third visit in
any of her prior accounts or why her mother failed to mention it
in her letter. (J.A. 357.) She also indicated for the first
time that her father had lost his job as a sanitation worker and
4
that she thought it was because she had refused to marry the
village chief’s nephew. 1 She claimed that although she learned
of her father’s termination prior to completing her asylum
application, she had not included the information then because
she “didn’t think about it.” (J.A. 342.) Yan did not have an
explanation for why her mother did not mention the father’s job
loss in the letter she wrote to support Yan’s application.
The IJ continued the proceedings to permit Yan more time to
acquire documentary evidence in support of her claims. At the
subsequent merits hearing, Yan submitted a copy of an abortion
certificate dated July 2, 2002, stating that an abortion was
performed on Yan “in this hospital on July 2.” (J.A. 228.)
In an oral decision (“September 2005 IJ Decision”), the IJ
denied Yan’s application for relief. The IJ first determined
that Yan was not credible with respect to her claim of past
persecution based on a forced abortion. The IJ found it
implausible that Yan would have failed to mention having a
forced abortion in either of her first two interviews,
especially given that there were questions specifically asking
Yan whether she or any family members had ever been “threatened
or mistreated.” (See J.A. 11.) The IJ also harbored doubts
1
Asked whether her father lost his job “because you escaped
. . . because you didn’t marry the nephew of the chief,” Yan
replied, “Maybe, I think so. I think that’s why.” (J.A. 341.)
5
about the abortion certificate’s validity, noting that although
it was purportedly issued in 2005, it bore a 2002 issuance date.
In addition, the IJ noted that a recent U.S. State Department
report had cautioned about a “very high rate of fraud or
fabrication of documents emanating from” the region of China
where Yan lived. (J.A. 422-23.)
With respect to the claim based on the threat of forced
marriage, the IJ found that Yan failed to establish persecution
on account of a protected ground. The IJ instead believed that
Yan’s account indicated “a personal dispute between [Yan] and
the person who wants to marry her.” (J.A. 423-24.) The IJ
reasoned that even if Yan’s testimony were accepted in whole,
the basis of her claim would not fall within any of the
protected categories for asylum or withholding of removal.
Yan appealed the IJ’s decision to the Board, which
summarily remanded the case for further proceedings in light of
Gao v. Gonzales, 440 F.3d 62 (2d Cir. 2006). 2
Following the remand but prior to any further proceedings,
Yan moved for a change of venue based on her recent relocation
2
In Gao, the Second Circuit held, inter alia, that “women
who have been sold into marriage (whether or not that marriage
has yet taken place) and who live in a part of China where
forced marriages are considered valid and enforceable”
constitute a “particular social group” for purposes of
establishing eligibility for asylum. 440 F.3d at 70-71.
6
to Virginia. The motion was granted and Yan’s case was
transferred to an IJ in Arlington, Virginia. During the same
interim period, the Supreme Court granted the petition for writ
of certiorari in Gao, vacated the Second Circuit’s judgment, and
remanded the case for reconsideration in light of Gonzales v.
Thomas, 547 U.S. 183 (2006) (per curiam). See Keisler v. Gao,
552 U.S. 801 (2007).
The Virginia IJ denied Yan’s applications for relief and
ordered her removed to China. In so doing, the IJ noted that
although the Board had remanded the case for reconsideration in
light of Gao, such reconsideration was no longer necessary due
to the transfer of Yan’s case out of the Second Circuit and the
Supreme Court’s action in Gao, each of which made Gao no longer
precedential authority. The IJ then adopted and reissued in
whole the September 2005 IJ Decision denying Yan’s applications.
Yan appealed the IJ’s decision to the Board, which
dismissed her appeal. The Board affirmed the IJ’s determination
that reconsideration in light of Gao was no longer necessary.
Turning to the merits of Yan’s case, the Board found no clear
error in the IJ’s finding that Yan “did not credibly establish
that she had a forced abortion in China.” (J.A. 535.) In
addition, the Board found that Yan failed to demonstrate past
persecution on account of a threat of forced marriage because
the conduct she testified to did not “rise[] to the level of
7
past persecution.” (J.A. 536.) The Board also agreed with the
IJ that Yan had not demonstrated a “well-founded fear of future
persecution on account of a statutorily enumerated ground”
because she did not belong to her proposed protected social
group (“women who suffered forced marriage”) given that Yan fled
China prior to being required to marry the village chief’s
nephew. (J.A. 536.) The Board then re-characterized Yan’s
proposed group as “women who have been targeted for forcible
marriage in the past” and concluded that such a group was not
cognizable under the INA because it “is not particularized or
socially visible.” (J.A. 536.)
Yan filed a timely petition for review of the Board’s
decision, and we have jurisdiction pursuant to 8 U.S.C. §
1252(a)(1).
II.
We review the Board’s administrative findings of fact under
the substantial evidence rule, treating such findings as
conclusive “unless the evidence before the [Board] was such that
any reasonable adjudicator would have been compelled to conclude
to the contrary.” Haoua v. Gonzales, 472 F.3d 227, 231 (4th
Cir. 2007); see 8 U.S.C. § 1252(b)(4)(B)-(D). We review legal
issues de novo, “affording appropriate deference to the
[Board]’s interpretation of the INA and any attendant
8
regulations.” Lin v. Mukasey, 517 F.3d 685, 691-92 (4th Cir.
2008).
The INA authorizes the Attorney General to confer asylum on
any refugee. See 8 U.S.C. § 1158(a). To establish eligibility
for the discretionary grant of asylum, Yan has the burden of
showing, inter alia, that she has “suffered past persecution” or
“has a well-founded fear of future persecution” “on account of .
. . membership in a particular social group . . . .” 8 C.F.R. §
1208.13(b); see Nazigi v. Gonzales, 455 F.3d 484, 486 (4th Cir.
2006). Yan could proceed to meet this burden in either of two
ways: She could show that she was subjected to past persecution,
in which case a rebuttable presumption arises that she has a
well-founded fear of future persecution. Ngarurih v. Ashcroft,
371 F.3d 182, 187 (4th Cir. 2004). Or, regardless of proof of
past persecution, Yan could demonstrate eligibility based solely
on a well-founded fear of future persecution. Id. There is
both a subjective and an objective component to this latter
approach. The subjective component is satisfied “by presenting
candid, credible, and sincere testimony demonstrating a genuine
fear of persecution.” Chen v. INS, 195 F.3d 198, 201 (4th Cir.
1999) (quotation marks omitted) (quoting Berrotean-Melendez v.
INS, 955 F.2d 1251, 1256 (9th Cir. 1987)). “The objective
element requires the asylum [applicant] to show, with specific,
9
concrete facts, that a reasonable person in like circumstances
would fear persecution.” Id. at 202.
A.
We have reviewed the record evidence and conclude that
substantial evidence supports the IJ’s adverse credibility
determination and denial of relief on Yan’s claim of past
persecution on account of having a forced abortion. 3 The IJ and
the Board articulated three specific and cogent reasons that
raised material concerns as to whether Yan was forced to have an
abortion. See Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir.
2011) (stating that “the agency must provide specific, cogent
reasons for making an adverse credibility determination”).
Moreover, these concerns go directly “to the heart” of Yan’s
3
Yan asserts for the first time on appeal that the IJ did
not actually make an adverse credibility determination, but
rather simply expressed “doubts” as to her credibility. This
argument is belied by the text of the IJ’s decision, which
unequivocally states, “I’m just not convinced that [Yan’s]
testimony is of a credible nature . . . .” (J.A. 423.)
Moreover, Yan has waived this challenge by failing to raise it
in her appeal to the Board and by conceding before the Board
that the IJ had made an adverse credibility finding. See
Farrokhi v. INS, 900 F.2d 697, 700 (4th Cir. 1990) (“[A]n alien
who has failed to raise claims during an appeal to the Board has
waived his right to raise those claims before a federal court on
appeal of the Board’s decision.”).
10
claim. 4 Id. at 273-74. Those reasons were: (1) Yan’s failure to
mention being forced to undergo an abortion at either her
airport or credible fear interviews, despite being asked whether
she or any family members had been threatened or mistreated in
China; (2) the suspect authenticity of the abortion certificate,
which bore an issuance date of July 2, 2002, even though it was
allegedly obtained by Yan’s father sometime after the May 2005
merits hearing; and (3) the U.S. State Department report’s
conclusion that “documentation from China is subject to
widespread fabrication and fraud,” particularly in Yan’s region
of the Fujian Province, including “documents that purportedly
verify . . . births and birth control measures.” (J.A. 207-10.)
Because substantial evidence supports the IJ’s credibility
determination, we will not disturb his conclusion that Yan was
not entitled to asylum or withholding of removal as to this
claim. See Djadjou, 662 F.3d at 273-75.
B.
Yan also appeals the Board’s denial of her petition for
asylum and withholding of removal arising from the village
4
Because Yan’s application was filed prior to May 11, 2005,
the provisions of the REAL ID Act changing this rule regarding
credibility determinations do not apply to her application. See
8 U.S.C. § 1158(b)(1)(B)(iii). Instead, her case is reviewed
under the prior standards. See Djadjou, 662 F.3d at 274 n.1.
11
chief’s nephew’s attempts to marry her. She claims that the
events precipitating her leaving China constitute “past
persecution” under the INA, and that those events also credibly
establish her fear of future persecution in the form of being
subjected to forced marriage should she return to China.
Yan challenges more than just the IJ and the Board’s
dispositive ruling as to this claim. She also contends that the
Virginia IJ erred as a matter of law in ignoring the Board’s
previous remand of her case for reconsideration in light of Gao,
and that her case should be reversed and remanded for the IJ to
apply Gao. We reject Yan’s argument because it would require us
to ignore two controlling and superseding facts that modified
the basis for the Board’s remand. First, the case was
originally being considered within the Second Circuit, and the
Board remanded for reconsideration in light of then-existing
Second Circuit precedent (Gao) that would have been binding on
an IJ within the Second Circuit. Upon transfer to a venue
within the Fourth Circuit, Yan’s case was no longer governed by
Second Circuit precedent. The transfer thus nullified any
binding impact of Gao on Yan’s claims. See, e.g., In re Yanez-
Garcia, 23 I. & N. Dec. 390, 399-400 (BIA 2002) (acknowledging
that the Board is “bound to follow the Second Circuit’s
[precedent] in cases arising within that court’s jurisdiction,”
12
but would apply a contrary view held by the Board to cases
arising “outside the Second Circuit”).
Second, and of at least equal importance, the Supreme Court
issued an order granting certiorari in Gao, vacating the
judgment below, and remanding the case for reconsideration. See
Gao, 552 U.S. 801. While Yan quibbles over the basis for the
Supreme Court’s action, the fact remains that Gao has been
vacated. The IJ did not err in determining that these
developments altered the basis for the remand, and the Board did
not err in agreeing with that assessment.
With respect to the merits of Yan’s claim, we hold that
substantial evidence supported the Board’s conclusion that Yan
has not demonstrated that she suffered past persecution. For
purposes of the INA,
[p]ersecution involves the infliction or threat of
death, torture, or injury to one’s person or freedom,
on account of one of the enumerated grounds in the
refugee definition. Although the term ‘persecution’
includes actions less severe than threats to life or
freedom, actions must rise above the level of mere
harassment to constitute persecution. Persecution is
an extreme concept that does not include every sort of
treatment that our society regards as offensive.
Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (internal
quotation marks and citations omitted); see Mirisawo v. Holder,
599 F.3d 391, 396 (4th Cir. 2010) (describing the sort of
economic, i.e., non-physical persecution that would satisfy the
INA’s strictures). Yan’s evidence regarding the village chief’s
13
nephew’s desire to marry her and his behavior after she refused
simply does not persuade us that a reasonable fact-finder must
conclude that Yan had been “persecuted” within the meaning of
the INA. Moreover, a decade has passed since Yan fled China
without any indication that the nephew still seeks to force her
into a marriage or has taken any action toward her family.
Accordingly, having failed to establish past persecution, Yan
was not entitled to a presumption of a well-founded fear of
future persecution. See Ngarurih, 371 F.3d at 187; see also 8
C.F.R. § 1208.13(b)(1).
Furthermore, because Yan relies on the same insufficient
evidence of past persecution to also establish her fear of
persecution if returned to China, Yan cannot, as a matter of
law, establish that she possesses a well-founded fear of future
persecution. 5 An alien whose evidence of past mistreatment does
not rise to the level of persecution “cannot prove a well-
founded fear of future persecution merely by relying on the past
mistreatment. Instead, the alien must prove that she has reason
to believe she will be treated worse, i.e., persecuted, upon
return to her native country.” Li, 405 F.3d at 176-77 (citing
5
That Yan relies on the same evidence to prove both past
persecution and fear of future persecution is readily apparent
not only from the record and briefing in this case, but also
from a concession by Yan’s counsel during oral argument.
14
Zalega v. INS, 916 F.2d 1257, 1261 (7th Cir. 1990) (internal
citation omitted)). Accordingly, Yan cannot establish
eligibility for asylum. 6
Because the standard for statutory withholding of removal
is more stringent than the standard for granting asylum, Yan’s
failure to establish eligibility for asylum necessarily means
she cannot meet the higher standard for withholding of removal.
See Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004).
6
The Board denied Yan’s claim of future persecution on the
ground that Yan’s particular social group was neither
particularized nor socially visible. We are of course mindful
that “except in rare circumstances,” the Court may not consider
issues in an administrative appeal that the agency has not first
decided. See Thomas, 547 at 185-87; INS v. Ventura, 537 U.S.
12, 16-17 (2002) (per curiam); see also Lin, 517 F.3d at 694
n.12. On full consideration of the scope of our authority and
the relevant precedent, we conclude that this case presents one
of those appropriate circumstances in which our decision rests
on a clear question of law rather than fact. We are also
confident that the Board’s decision as to this issue would be “a
foregone conclusion” and remand for consideration in the first
instance a “mere formality.” See Hussain v. Gonzales, 477 F.3d
153, 158 (4th Cir. 2007) ("Because the result of a remand to the
Board is a foregone conclusion such that remand would amount to
nothing more than a mere formality, we find that the Ventura
'rare circumstances' exception applies."); see also id. at 157-
58.
15
III.
For the foregoing reasons, we deny Yan’s petition for
review.
PETITION DENIED
16