Jiang v. Holder

436 F. App'x 315
Court of Appeals for the Fifth Circuit·Decided August 5, 2011·No. No. 10-60680·Published

Opinion

PER CURIAM: *

Ronghua Jiang (“Petitioner”), a native and citizen of the People’s Republic of China, petitions for review of a final order of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an order by the immigration judge (“U”) denying his application for asylum.1 For the [316] following reasons, the petition is DENIED.

I.

Jiang was admitted into the United States in July 2007 with authorization to remain until October 22, 2007. A Notice to Appear was issued in July 2008, charging Jiang as being removable for remaining in the United States without authorization. Jiang conceded his removability and applied for asylum. He asserted that he suffered past persecution because of his political opinion related to his opposition to the government forcing his wife to have two abortions and a procedure forcibly sterilizing her.

Jiang testified before the IJ that his wife, a teacher at a government school, gave birth to their daughter in 1987. In 1989, his wife became pregnant again. When the school authorities discovered the pregnancy, they “forced” his wife to undergo an abortion. Jiang admitted that there was no physical force but that he and his wife decided she would undergo the abortion because the school threatened to fire her and there was a “huge fine” for having a second child.

Jiang and his wife decided to try to have another child after the abortion, hoping they would only be fined or suffer an administrative punishment, such as a reduced salary. Shortly after she became pregnant in December 1990, Jiang took his wife to his parent’s home in an attempt to escape detection. However, the school authorities discovered the pregnancy and told her to have an abortion. They told Jiang that they would both be fined, Jiang’s wife would be fired, they would lose their home (which was provided by the school), and Jiang would be arrested if he resisted. The school authorities also notified Jiang’s government employer, who threatened to fire him if his wife did not undergo the abortion. In the face of these threats, Jiang’s wife underwent the abortion in July 1991, and she was involuntarily sterilized in October 1991.

After her abortions and sterilization, Jiang’s wife continued to be employed at the school, and neither she nor Jiang suffered any additional consequences. In 1992, Jiang quit his government job and opened a restaurant which he operated until 2002. In 2005, Jiang was employed at a private media and advertising company. In 2007, more than 15 years after his wife’s abortions and sterilization, he quit this job in order to travel to the United States to see his daughter, a university student in Ohio.

The IJ determined that Jiang testified credibly and that his acts of resistance to the one-child policy included: (1) the efforts by Jiang and his wife to have a second child; (2) the opposition of Jiang and his wife to both abortions; (8) the attempts by Jiang and his wife to garner support from the community to petition family planning officials for an exception to the one-child policy; and (4) hiding his wife during her second unsanctioned pregnancy. However, the IJ found that the threats to arrest Jiang and impose economic sanctions constituted coercion but not persecution because none of the threats were carried out. The IJ also found that Jiang’s loss of the aborted children and the ability to procreate with his wife did not qualify as persecution.

Jiang appealed the IJ’s decision and the BIA affirmed the IJ’s decision without an opinion. Jiang then filed this timely petition for review.

II.

Because the BIA summarily affirmed the IJ’s opinion, we review the IJ’s opinion. Eduard v. Ashcroft, 379 F.3d 182, 186 (5th Cir.2004). We review findings of fact to determine whether they are supported [317] by substantial evidence, and we review conclusions of law de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir.2007). On substantial evidence review of factual findings, we reverse “only when the evidence is so compelling that no reasonable fact finder could fail to find the petitioner statutorily eligible for relief.” Arif v. Mukasey, 509 F.3d 677, 679-80 (5th Cir.2007) (internal quotation omitted).

Accordingly, to reverse a determination by the BIA (or the IJ in this case) that a petitioner did not suffer past persecution, a petitioner must show that the evidence he presented was so compelling that no reasonable fact finder could fail to find that the petitioner suffered persecution. Jukic v. I.N.S., 40 F.3d 747, 749 (5th Cir. 1994) (internal quotation omitted). Zhang v. Gonzales, 432 F.3d 339 (5th Cir.2005).

III.

Jiang argues that the BIA erred in determining that he is not eligible for asylum because he failed to prove that he suffered past persecution based on his resistance to China’s family planning policies. We first consider the statutory framework under which an applicant may apply for asylum.

A.

Under the Immigration and Naturalization Act (“INA”), an alien who arrives in or is present in the United States may apply for asylum. See 8 U.S.C. § 1158(a)(1) (2010). The Attorney General or the Secretary of Homeland Security has discretion to grant asylum if the alien satisfies his burden of establishing that he is a “refugee.” Id. § 1158(b)(1). The INA defines a “refugee” as:

any person who is outside any country of such person’s nationality ... and 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.

Id. § 1101(a)(42)(A).

An alien need not suffer physical harm to establish persecution; for example, “the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment, or other essentials of life” may be enough to establish persecution. Tesfamichael v. Gonzales, 469 F.3d 109, 114 (5th Cir.2006) (internal quotation omitted). However, persecution must be extreme to qualify an applicant for asylum because it does not encompass all treatment we might consider unfair or unjust. Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir.2006).

In 1996 Congress specifically provided that persons subjected to forced abortions and involuntary sterilizations have been per se persecuted on account of political opinion:

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Jiang v. Holder, 436 F. App'x 315 (5th Cir. 2011).

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