United States Court of Appeals Fifth Circuit F I L E D REVISED DECEMBER 21, 2006 November 22, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 05-60379
XUE ZHEN CHEN
Petitioner
v.
ALBERTO R. GONZALES, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the Board of Immigration Appeals BIA No. A77 977 370
Before KING, GARWOOD, and JOLLY, Circuit Judges.
KING, Circuit Judge:
Xue Zhen Chen petitions for review of an order of the Board
of Immigration Appeals denying her application for asylum,
withholding of removal, and relief under the United Nations
Convention Against Torture. I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Xue Zhen Chen is a native and citizen of China,
where she was born and lived in the Fujian Province. In August
2001, Chen left China illegally and entered the United States
with the paid assistance of smugglers, known as “snakeheads.”
Upon arriving at the Los Angeles International Airport from
Vietnam, Chen presented a United States passport issued to Jenny
Susan Chong. Immigration officials determined Chen’s true No. 05-60379 -2-
identity and she was subsequently charged as being subject to
removal on grounds that she falsely represented that she was a
United States citizen and she did not have any documentation
authorizing her presence in the United States.
Chen conceded removability in removal proceedings, but
applied for asylum, withholding of removal, and for protection
under the United Nations Convention Against Torture (“Convention
Against Torture”) on April 30, 2002. Chen asserted in her
application that she could not return to China because: (1) she
feared physical harm from snakeheads and money lenders as
retribution for the debt she owed them; (2) local officials were
corrupt and profited from illegal smuggling operations and
therefore would not protect her from snakeheads and money
lenders; (3) her mother was forcibly sterilized and Chen
disagreed with China’s coercive family planning policy; and (4)
she would be jailed because she left China illegally, and once
jailed, would be subject to mental and physical torture.
In the two-year intervening period between Chen’s
application for relief and her removal hearing, Chen lived in
Mount Pleasant, Texas, and worked at her uncle’s restaurant.
While working at the restaurant, Chen became acquainted with
members of a nearby Nazarene church who offered to help her
improve her English. Chen began taking English lessons at the
church, became interested in Christianity, and then took Bible
classes and was baptized at the church. At her removal hearing
before the immigration judge (“IJ”) on March 29, 2004, Chen
stated, as part of her argument for relief, that she had No. 05-60379 -3-
converted to Christianity since her arrival in the United States
and that she feared persecution on the basis of religion if she
returned to China.
The IJ issued an oral decision and accepted Chen’s testimony
as “basically plausible and credible.” The IJ, however, denied
Chen’s application on all three bases for relief. The IJ
concluded that if Chen were to be jailed as a result of her
illegal departure from China, the evidence did not support a
reasonable fear of harm constituting persecution or a likelihood
of torture. The IJ likewise concluded that it was unlikely that
snakeheads or money lenders would cause any harm to Chen, and
that based on the evidence of the Chinese government’s
“substantial effort” to detect, arrest, and prosecute corrupt
public officials, it was unlikely that the government of China
would acquiesce in any harm from snakeheads or money lenders.
The IJ further concluded that the substantial period between
Chen’s mother’s forced sterilization, the lack of evidence about
Chen’s interest in motherhood, and the government’s declining
efforts to enforce the one-child policy barred relief on the
basis of China’s family policy. Finally, the IJ concluded that
the evidence did not show that it was likely that Chen would
suffer harm amounting to persecution on the basis of her
conversion to Christianity.
The Board of Immigration Appeals (“BIA”) affirmed the IJ’s
decision without an opinion and Chen timely appealed.
II. STANDARD OF REVIEW
When the BIA affirms the IJ’s decision without an opinion, No. 05-60379 -4-
as is the case here, the IJ’s decision is the final agency
decision for purposes of judicial review on appeal. Soadjede v.
Ashcroft, 324 F.3d 830, 831-32 (5th Cir. 2003). The agency’s
administrative “findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary . . . .” 8 U.S.C. § 1252(b)(4)(B). This standard of
review essentially codifies the substantial evidence test
established by the Supreme Court in INS v. Elias-Zacarias, 502
U.S. 478, 481 & n.1 (1992). We apply this standard in reviewing
an IJ’s factual conclusion that an applicant is not eligible for
asylum, Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005),
withholding of removal, Zamora-Morel v. INS, 905 F.2d 833, 838
(5th Cir. 1990), and relief under the Convention Against Torture,
Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 353 (5th Cir. 2002).
Under the substantial evidence standard, reversal is
improper unless we decide “not only that the evidence supports a
contrary conclusion, but also that the evidence compels it.”
Zhao, 404 F.3d at 306 (quoting Chun v. INS, 40 F.3d 76, 78 (5th
Cir. 1994)). The applicant has the burden of showing that the
evidence is so compelling that no reasonable factfinder could
reach a contrary conclusion. Id.
III. DISCUSSION
Chen contends that the IJ erred by denying her application
for asylum, withholding of removal, and relief under the
Convention Against Torture. We review her claims of error
according to each basis for relief.
A. Asylum No. 05-60379 -5-
The Attorney General has the authority to grant asylum to
any applicant who qualifies as a refugee under 8 U.S.C.
§ 1101(a)(42)(A). 8 U.S.C. § 1158(b). The statute defines a
refugee as
any person . . . who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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). Being classified as a refugee on the
basis of past persecution or a well-founded fear of persecution,
however, does not automatically entitle a refugee to asylum.
Mikhael v. INS, 115 F.3d 299, 303 (5th Cir. 1997). The Attorney
General’s statutory power to grant asylum is discretionary. Id.
(noting that the provision’s language is precatory, giving the
Attorney General discretion to grant asylum).
Because Chen converted to Christianity after her arrival in
the United States, her asylum application rests on a well-founded
fear of persecution based on religion rather than past
persecution. To establish a well-founded fear of future
persecution, an applicant must demonstrate “a subjective fear of
persecution, and that fear must be objectively reasonable.”
Eduard v. Ashcroft, 379 F.3d 182, 189 (5th Cir. 2004) (quoting
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 445 (5th Cir. 2001)).
Because the IJ credited Chen’s testimony, her subjective fear of
persecution is not at issue and our review focuses on the
objective reasonableness of her fear. The objective prong
requires the applicant to establish that “‘a reasonable person in No. 05-60379 -6-
[her] circumstances would fear persecution’” if deported. Id.
(quoting Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994)).
Although the Immigration and Nationality Act does not define
“persecution,” we have relied on a description of persecution as:
The infliction or suffering of harm, under government sanction, upon persons who differ in a way regarded as offensive (e.g., race, religion, political opinion, etc.), in a manner condemned by civilized governments. The harm or suffering need not be physical, but may take other forms, such as the deliberate imposition of severe economic disadvantage, or the deprivation of liberty, food, housing, employment, or other essentials of life.
Abdel-Masieh v. INS, 73 F.3d 579, 583 (5th Cir. 1996) (quoting
Matter of Laipenieks, 18 I. & N. Dec. 433, 456-57 (BIA 1983)).
The well-founded fear standard does not require an applicant to
demonstrate that he will be persecuted if returned to his native
country, but rather, requires that he establish persecution as a
“reasonable possibility.” INS v. Cardoza-Fonseca, 480 U.S. 421,
440 (1987); see also Eduard, 379 F.3d at 189 (relying on Cardoza-
Fonseca for the proposition that the applicant must establish,
“to a reasonable degree,” that return to his native country would
be intolerable).
To establish the objective reasonableness of a well-founded
fear of persecution, an applicant must prove that
(1) he possesses a belief or characteristic a persecutor seeks to overcome by means of punishment of some sort; (2) the persecutor is already aware, or could become aware, that the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and, (4) the persecutor has the inclination to punish the alien.
Zhoa, 404 F.3d at 307 (citing Eduard, 379 F.3d at 191). No. 05-60379 -7-
Chen asserts that the IJ erred by holding that she did not
have a well-founded fear of persecution based on her religion.
She argues that the IJ’s conclusion that her fear of persecution
was not objectively reasonable was based on two erroneous
assumptions: that Chen’s Nazarene faith was not at a level of
sophistication such that she would be subjected to persecution
and that only a small percentage of Christians are persecuted in
China.
Chen first argues that the IJ erred in relying on her “level
of [religious] sophistication” to determine whether she would be
subjected to persecution because an applicant’s level of
sophistication cannot be used as a proxy for depth of religious
faith. Chen points to the Second Circuit’s recent decision in
Rizal v. Gonzales, 442 F.3d 84 (2d Cir. 2006), for support. In
Rizal, the Second Circuit granted an applicant’s petition for
review because the IJ “erroneously viewed [the applicant’s] lack
of detailed doctrinal knowledge about Christianity as
automatically rendering incredible his claim of religious
persecution, without assessing the genuineness of [his] asserted
Christian self-identification . . . .” Id. at 86. Rizal,
however, does not resolve the dispositive question presented
here. Whereas in Rizal, the IJ posed doctrinal questions to
determine that the applicant’s testimony regarding his religious
belief was not credible, in Chen’s case, the IJ accepted Chen’s
testimony of religious conversion as credible based on her
demeanor and documents demonstrating that she had completed Bible
classes and had been baptized. Although the IJ did refer to No. 05-60379 -8-
Chen’s level of sophistication, it was in relation to whether
Chen’s understanding of doctrinal distinctions was at a stage
such that, if returned to China, she would have to attend a
Nazarene church in particular, which would necessarily be an
unregistered or underground church, or if she could attend the
state-sponsored Protestant church.1 Chen counters that she would
not attend a state-sponsored church and would be relegated by
both choice and geographical logistics in the Fujian Province to
attend an unregistered or underground church.
Chen’s argument for asylum then actually rests on the
persecution to which adherents in unregistered or underground
churches are subjected. Accordingly, although we do not agree
with Chen that the IJ improperly considered level of
sophistication in her case, the success of her claim rests not on
her first claim of error——the sophistication of her beliefs——but
on her second claim, which is that the judge erred in concluding
that Protestants worshiping in either registered or unregistered
churches in China are not subject to persecution to the extent
necessary to give rise to a well-founded fear of persecution.
We consider it unnecessary to resolve the debate about which
church Chen would attend because the evidence does not compel a
finding of persecution in either case. The IJ found that based
on the evidence in
the country materials and the Religious
1 The IJ stated: “[T]he respondent at this point, I take her at her word, has converted to Christianity, but the Court doesn’t think that her level of sophistication in this regard is such that she would feel it necessary to try to find a Nazarene church as compared with some other Protestant church.” No. 05-60379 -9-
Freedom Report that there are many Christians in China and many of them are members of registered churches who don’t have any particular problems. And to the extent that those who are members of these unregistered churches, again, it would seem[] to the Court that it’s really a relatively small number or percentage of people who suffer any harm on that account.
Consequently, the IJ found Chen’s fear of persecution to be
“highly speculative.”
Chen points to the China Country Report on Human Rights
Practices——2002 (“2002 Country Reports”) as compelling the
opposite conclusion. Our review of the entire record, including
the China 2003 International Religious Freedom Report (“2003
Religious Freedom Report”) and the 2002 Country Report, however,
does not compel the conclusion that Chen faces persecution to a
reasonable degree. Although the 2003 Religious Freedom Report is
troubling in indicating that the Chinese government’s “respect
for freedom of religion . . . remains poor”2 and that
unregistered religious groups continued to experience “varying
degrees of official interference and harassment,”3 the report is
not sufficiently detailed to support conduct amounting to a
pattern of persecution directed at Protestants. Cf. Eduard, 379
F.3d at 192 & n.10. The 2003 Religious Freedom Report is
generally vague and its examples tend to focus on official
repression of non-Protestant groups.4 The same report also
2 R. 232, 2003 Religious Freedom Report. 3 R. 232, 2003 Religious Freedom Report. 4 R. 232, 2003 Religious Freedom Report (“The Government’s respect for religious freedom . . . remained poor, especially for some members of unregistered religious groups and No. 05-60379 -10-
states that the number of religious adherents at official and
underground places of worship continued to grow in China,5 and
that “many religious adherents reported that they are able to
practice their faith in officially registered places of
worship . . . without interference.”6 As for underground
adherents, the report indicates that although there is
governmental pressure for unregistered churches to register, and
notwithstanding the fact that police closed “some Catholic
churches and Protestant ‘house churches,’”7 at the same time
“prayer meetings and Bible study groups held in house churches
are legal and generally are not subject to registration
requirements so long as they remain small and unobtrusive.”8
Moreover, the 2003 Religious Freedom Report indicates that
“[f]oreign and Chinese sources estimate that some 30 million
persons worship in Protestant house churches that are independent
of government control.”9 Although we agree with Chen that the
2003 Religious Freedom Report indicates that in some cases
religious adherents have been persecuted, because the specific
examples of detention or arrest in 2002 that amount to
spiritual movements such as the Falun Gong.”) (emphasis added). 5 R. 232, 2003 Religious Freedom Report. 6 R. 229, 2003 Religious Freedom Report. See also R. 232 (“Overall, the basic policy of permitting religious activity to take place relatively unfettered in government approved sites and under government control remained unchanged.”). 7 R. 232, 2003 Religious Freedom Report (emphasis added). 8 R. 233, 2003 Religious Freedom Report. 9 R. 230, 2003 Religious Freedom Report. No. 05-60379 -11-
persecution appear to be predominantly focused on the Falun Gong,
underground seminaries, and religious leaders, and because the
overall number appears small compared to the enormous number of
unregistered Protestant adherents, we conclude that the 2003
Religious Freedom Report does not compel a finding of persecution
to a reasonable degree.10
The specific passages in the 2002 Country Report to which
Chen points do not require us to conclude otherwise. Chen argues
that the 2002 Country Report generally indicates that the
authoritarian Chinese government seeks to control “every aspect
of people’s lives in China,” including religious thought and
worship through state regulation. However, regulation does not
necessarily amount to persecution. Chen further points to a
passage indicating that legal protections in reeducation-through-
labor camps “are routinely violated,”11 but neither report
indicates a reasonable possibility that Chen will be subjected to
detention for her Protestant beliefs. Although the 2002 Country
Report indicates that there are religious adherents who have
experienced conduct amounting to persecution, like the 2003
Religious Freedom Report, the 2002 Country Report is vague with
respect to how many and which religious adherents in particular
experience any level of government intimidation or suppression,
and for those who do, at what degree and frequency such
intimidation or suppression occurs such as to constitute
10 R. 236, 2003 Religious Freedom Report. 11 R. 295, China Country Reports on Human Rights Practices——2002 (“2002 Country Report”). No. 05-60379 -12-
persecution. Accordingly, we conclude that the IJ’s denial of
Chen’s application for asylum is supported by substantial
evidence.
B. Withholding of Removal
To be eligible for withholding of removal, an applicant must
demonstrate a “clear probability” of persecution on the basis of
race, religion, nationality, membership in a particular social
group, or political opinion. See, e.g., Zhang v. Gonzales, 432
F.3d at 344; Faddoul, 37 F.3d at 188; see also Efe v. Ashcroft,
293 F.3d 899, 906 (5th Cir. 2002) (writing that an applicant for
withholding of removal must show “‘it is more likely than not’
that his life or freedom would be threatened by persecution”
(quoting 8 C.F.R. § 208.16(b)(1))). Although the standard for
withholding of removal is in one regard less stringent than that
required to establish eligibility for asylum, where an applicant
must also show a subjective fear of persecution, the requirement
of “clear probability” of persecution requires the applicant to
show a higher objective likelihood of persecution than that
required for asylum. Efe, 293 F.3d at 906; Faddoul, 37 F.3d at
188. Because the evidence does not compel us to conclude that
Chen’s fear of persecution on the basis of religion is well-
founded under the lower objective standard for asylum, we
necessarily conclude that she is not eligible for withholding of
removal under the higher objective standard. See, e.g., Efe, 293
F.3d at 906; Faddoul, 37 F.3d at 188 n.7.
C. Relief Under the Convention Against Torture
The Convention Against Torture provides that No. 05-60379 -13-
1. No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.12
Claims based on the Convention Against Torture differ from those
based on eligibility for asylum or withholding of removal because
the claim need not be based on race, religion, nationality,
membership in a particular social group, or political opinion.
Zhang, 432 F.3d at 344 (citing Efe, 293 F.3d at 907). Claims
brought under the Convention Against Torture further differ
because “proof of torture, not simply persecution” is required.
Id. Accordingly, with regard to the conduct complained of,
applicants seeking relief under the Convention Against Torture
must satisfy a more rigorous standard than that for asylum. Efe,
293 F.3d at 907. Torture is defined as:
[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 her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her 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.
12 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. III, Feb. 4, 1985, 1465 U.N.T.S. 85. No. 05-60379 -14-
8 C.F.R. § 208.18(a)(1). Finally, an applicant for relief under
the Convention Against Torture has the burden of demonstrating
“that it is more likely than not that he or she would be tortured
if removed to the proposed country of removal.” Id.
§ 208.16(c)(2) (emphasis added).
Chen asserts that the IJ erred in two respects that
independently qualify her for relief under the Convention Against
Torture. First, Chen argues that she will be detained as a
result of leaving China illegally and that conditions in Chinese
detention facilities rise to the level of torture. As an initial
matter, we note that “the normal incidents of lawful sanctions do
not constitute torture.” Zhang, 432 F.3d at 345; 8 C.F.R.
§ 208.18(a)(3) (“Torture does not include pain or suffering
arising only from, inherent in or incidental to lawful sanctions.
Lawful sanctions include judicially imposed sanctions and other
enforcement actions authorized by law, including the death
penalty, but do not include sanctions that defeat the object and
purpose of the Convention Against Torture to prohibit torture.”).
Chen has provided, as evidence that she is more likely than not
to be tortured if returned, what the Seventh Circuit has called a
“huge mass of evidence bearing on the . . . issue.” Lian v.
Ashcroft, 379 F.3d 457, 461 (7th Cir. 2004) (considering the same
body of evidence as that which Chen’s counsel proffers in this
case).
Chen argues that because she has proffered the same evidence
as the petitioner in Lian——and in Lian, the Seventh Circuit
remanded the case to the IJ after the IJ concluded that the No. 05-60379 -15-
petitioner would not be subject to torture——Lian then supports a
conclusion that Chen has satisfied the standard for relief under
the Convention Against Torture. Although Lian is instructive to
our inquiry in its contemplation of the significance of the
record, Lian does not hold that all applicants who leave China
illegally are eligible for relief under the Convention Against
Torture because of conditions in Chinese detention facilities.
In Lian, the court remanded the petitioner’s case after
concluding that the IJ denied relief on the basis of reasons not
supported in the record and without considering the evidence
offered by the petitioner. Id. at 459. In doing so, the court
stated “[t]his is not to say that Lian has proved his case under
the torture convention.” Id. at 460.
Unlike Lian, in Chen’s case the IJ did not rely on erroneous
assumptions to deny relief. Furthermore, the IJ in Chen’s case
expressly considered the record to conclude that although it was
“likely that [Chen] would be detained and required to pay some
type of bail or fine and certainly the conditions in the Chinese
jails are not what they would be here,” Chen nevertheless failed
to show that it was more likely than not that those conditions
would subject her to torture. Accordingly, our inquiry is
different from that in Lian, and we review the record to
determine if the evidence compels a contrary conclusion.
Like the evidence regarding persecution, Chen’s evidence
regarding Chinese prisons and detention facilities is troubling.
The 2002 Country Report indicates that “conditions in penal
institutions for both political prisoners and common criminals No. 05-60379 -16-
generally were harsh and frequently degrading,” and that “police
and other elements of the security apparatus employed torture and
degrading treatment in dealing with some detainees and
prisoners”13 with reports from some individuals that they were
subject to electric shock, solitary confinement, beatings,
shackles, and other forms of abuse. The 2002 Country Report
further states that “[c]onditions in administrative detention
facilities, such as reeducation-through-labor camps . . . were
similar to those in prisons.”14 The 2002 Country Report
indicates that several deaths occurred in one reeducation-
through-labor camp in Sichuan Province in 2000 as a result of
overwork, poor medical care, and beatings by guards.
A careful review of the record indicates that there appears
to be no question that some individuals in China have been
subjected to acts constituting torture in either prisons or
detention centers, and that some illegal emigrants are sent to
reeducation-through-labor camps. Although the gravity of this
reality does not escape us, the information in the record does
not indicate with any certainty that illegal emigrants are more
likely than not sent to reeducation-through-labor camps, and then
subjected to torture. Cf. Lian, 379 F.3d at 461 (“How one
translates all this vague information into a probability that
[the petitioner] will be tortured (remember the test is “more
likely than not”) is a puzzler.”). Consequently, Chen’s evidence
does not compel us to conclude that she will more likely than not
13 R. 297, 2002 Country Report. 14 R. 297, 2002 Country Report. No. 05-60379 -17-
be subjected to torture for leaving China illegally.
The 2002 Country Report supports this conclusion, indicating
that “[p]ersons who were trafficked from the country and then
repatriated sometimes faced fines for illegal immigration upon
their return. After a second repatriation, such persons could be
sentenced to a term in a reeducation-through-labor camp.”15
Accordingly, the IJ’s conclusion that Chen may face a fine upon
her return, and that Chen will not likely face torture is
supported by substantial evidence. Even if Chen is detained
after her first repatriation,16 although the 2002 Country Report
and other evidence indicates that some detainees have been
subject to torture, we do not find that the generalized evidence
compels a conclusion that it is more likely than not that
detainees as a whole are subject to torture, or that detainees
detained on account of repatriation as a subgroup——as opposed to
those detained on other grounds——are more likely than not to be
subject to torture. See Lin v. Gonzales, 432 F.3d 156, 161 (2d
Cir. 2005).
Chen’s second claim for relief under the Convention Against
Torture is that she will be tortured by snakeheads and money
lenders upon her return to China and that Chinese officials will
be acquiescent in such torture. Like her first claim under the
Convention Against Torture, Chen must show that the evidence
15 R. 329, 2002 Country Report. 16 Chen’s evidence includes a series of 1999 newspaper articles indicating that in Fujian Province 215 illegal immigrants were detained after being repatriated from Cambodia for the first time. No. 05-60379 -18-
compels a finding that it is more likely than not that she will
be tortured if returned to China. The Convention Against
Torture, however, protects against torture only when it 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.” 8 C.F.R. § 208.18(a)(1). In that Chen’s
second claim rests on torture by non-governmental snakeheads and
money lenders, she must also demonstrate that sufficient state
action is involved in that torture. Tamara-Gomez v. Gonzales,
447 F.3d 343, 351 (5th Cir. 2006).
Chen first argues that the IJ applied the wrong legal
standard for “acquiescence” in denying her claim based on a lack
of state action. She asserts that the IJ, in finding that the
Chinese government was making substantial efforts to combat
official corruption, required her to prove that the Chinese
government would be actually acquiescent in——or actually
accept——the torture in order to qualify for relief under the
Convention Against Torture. She argues, based on cases from the
Second and Ninth Circuits, that the level of government
involvement that constitutes “acquiescence” is not actual
acceptance of torture but rather mere awareness or willful
blindness of torture, and a failure to prevent it. Khouzam v.
Aschroft, 361 F.3d 161 (2d Cir. 2004); Zheng v. Ashcroft, 332
F.3d 1186 (9th Cir. 2003). Accordingly, she asserts that she
only has to prove that the Chinese government is aware that
snakeheads and money lenders torture people and that the
government fails to prevent that torture. No. 05-60379 -19-
We conclude that the IJ applied the correct legal standard
for government acquiescence and that Chen’s characterization of
the IJ’s conclusion is overstated. First, we observe that Zheng,
the Ninth Circuit case Chen relies on, does not depart from Fifth
Circuit precedent. In Ontunez-Tursios v. Ashcroft, we stated
that the proper inquiry for “acquiescence” is “willful
blindness,” or whether public officials “would turn a blind eye
to torture.” 303 F.3d 341, 354-55 (5th Cir. 2002). In Zheng,
the Ninth Circuit quoted the Ontunez-Tursios standard with
approval and agreed with it to hold that the petitioner there was
only required to prove that torture by snakeheads would be
carried out with the awareness of Chinese government officials.
332 F.3d at 1195-96. Second, there is no indication that the IJ
denied Chen’s claim by requiring that she show “actual”
government acquiescence to torture. In characterizing Chen’s
claim for relief under the Convention Against Torture, the IJ
stated:
I guess another aspect of this would be whether if the money lenders who have not yet been paid came after her might the government look the other way and therefore be at least complicit in whatever might happen to [her] at the hand of these loan sharks, and perhaps then whatever would happen to [her] that might be seen as torture if the government were aware of any penalties being meted out and took no action to protect the respondent.
(Emphases added.) This recitation, indicating that government
officials would be complicit in torture if they “look[ed] the
other way” or “were aware” of torture and “took no action” is
consistent with the willful blindness standard as set forth in
Ontunez-Tursios. No. 05-60379 -20-
In reviewing the evidence, the IJ subsequently held that
it seems to the Court that it’s very problematic any such harm would occur and moreover that if it did that the government would be acquiescent in it and that it would seem that the government of China would be attempting to arrest and prosecute these snakehead criminal syndicates . . . again the Court’s reading of the Country report suggests that there is a substantial effort on the part of the government of China to detect and arrest and prosecute corrupt public officials.
Consideration of government efforts to combat corruption or abuse
does not raise the legal standard for acquiescence as Chen
suggests, and instead is relevant to the willful blindness
inquiry. In Tamara–Gomez, this court considered, in concluding
that the state action requirement was not met, efforts by the
Columbian government to combat a non-governmental narco-terrorist
guerrilla group from whose torturous conduct the petitioner
sought relief under the Convention Against Torture. 447 F.3d
343. We concluded that “neither the failure to apprehend the
persons threatening the alien, nor the lack of financial
resources to eradicate the threat or risk of torture constitute
sufficient state action for purposes of the Convention Against
Torture.” Tamara-Gomez, 447 F.3d at 351. The government’s
inability to provide “complete security” to the petitioner from
the guerrilla group did not rise to the level of state action.
Id. Accordingly, it was proper for the IJ here to consider
efforts by the Chinese government to combat alien smuggling rings
and official corruption in the willful blindness inquiry.
Having determined that the IJ did not apply the incorrect
legal standard for governmental “acquiescence,” we turn to Chen’s No. 05-60379 -21-
argument that the IJ’s determination is not supported by
substantial evidence. We review the evidence relevant to both
requirements for relief under the Convention Against Torture:
that Chen demonstrate the probability of sufficient state action
and torture. Regarding state action, we conclude that Chen’s
evidence does not compel a finding that government officials will
acquiesce to torture by snakeheads or money lenders. The 2002
Country Report discusses many forms of human trafficking (e.g.,
internal bride trafficking, sex exploitation, child kidnapping,
and indentured servitude), including alien smuggling.17 The 2002
Country Report indicates that the Chinese government prosecuted
alien smugglers: “Alien smugglers were fined $6,000 and most were
sentenced to up to 3 years in prison, although some have been
sentenced to death.”18 As for corrupt officials, the report
indicates generally that there were reports of official
complicity with alien smuggling, but that the government had
prosecuted and sentenced 18,000 officials on corruption-related
charges in 2000. The 2002 Country Report does not indicate the
form in which official complicity occurs, and whether, for our
purposes, it extends to torturous retribution meted out by alien
smugglers. On balance, although Chen’s evidence demonstrates the
existence of snakeheads and generally describes instances of
official corruption, in light of the government’s prosecution of
alien smugglers and corrupt officials, the evidence does not
compel a conclusion that the government will more probably than
17 R. 328-30, 2002 Country Report. 18 R. 329, 2002 Country Report. No. 05-60379 -22-
not acquiesce in torture.
Turning to the probability of torture, we also do not find
it more likely than not that Chen will be tortured by snakeheads
upon her return to China. Chen testified that she repaid
snakeheads with money her family borrowed from money lenders, and
it is this second debt to money lenders that she is now repaying.
Chen’s testimony indicates both that the snakeheads are
individuals distinct from the money lenders and that her
obligation to the snakeheads has been satisfied. Accordingly, a
conclusion that she will be tortured by snakeheads as retribution
for a debt she has already repaid is not supported by the
evidence. In regard to torture by money lenders, Chen’s argument
focuses entirely on the conduct of snakeheads in China, without
making any connection between snakeheads and money lenders and
without establishing any probability of torture at the hands of
money lenders. As a result, the IJ’s conclusion that Chen is not
likely to be subjected to torture at the hands of money lenders
is supported by substantial evidence.
IV. CONCLUSION
For the foregoing reasons, the petition for review of the
BIA’s order is DENIED.