17-336 Qiao v. Sessions BIA Wright, IJ A205 883 049 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of June, two thousand eighteen.
PRESENT: JON O. NEWMAN, DENNIS JACOBS, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________
LANPING QIAO, Petitioner,
v. 17-336 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Keith S. Barnett, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Erica B. Miles, Senior Litigation Counsel; Anthony O. Pottinger, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Lanping Qiao, a native and citizen of the
People’s Republic of China, seeks review of a January 5, 2017,
decision of the BIA affirming a March 16, 2016, decision of
an Immigration Judge (“IJ”) denying her asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Lanping Qiao, No. A205 883 049 (B.I.A. Jan.
5, 2017), aff’g No. A205 883 049 (Immig. Ct. N.Y. City Mar.
16, 2016). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). Qiao argues only that she
established her eligibility for asylum based on her claims of
past persecution on account of two abortions she had under
China’s family planning policy, and a detention and beating
she suffered for reporting corruption by local government
officials. The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. 2 Holder, 562 F.3d 510, 513 (2d Cir. 2009). As discussed below,
we find no error in the agency’s conclusion that Qiao failed
to meet her burden of proof.
Family Planning Claim
A petitioner is eligible for asylum if she suffered past
persecution on account of her “race, religion, nationality,
membership in a particular social group, or political
opinion.” 8 U.S.C. § 1158(b)(1)(B)(i). “[A] person who has
been forced to abort a pregnancy . . . shall be deemed to
have been persecuted on account of political opinion.”
8 U.S.C. § 1101(a)(42)(B); see also Xiu Fen Xia v. Mukasey,
510 F.3d 162, 165 (2d Cir. 2007). “An abortion is not
‘forced’ . . . unless the threatened harm for refusal would,
if carried out, be sufficiently severe that it amounts to
persecution.” In re T-Z-, 24 I. & N. Dec. 163, 169 (B.I.A.
2007). The agency did not err in finding that Qiao failed
to satisfy her burden of demonstrating that her abortions
were “forced.”
Qiao admitted that family planning officials did not
physically force her to terminate her pregnancies in 1983
and 1991. Rather, she asserted that the family planning
officials at the government factory where her family worked
used a threat of job loss, i.e., economic persecution, to 3 “force” her to end her pregnancies.
In order for economic harm to constitute persecution,
the harm must be “severe,” such that it would “constitute a
threat to an individual’s life or freedom,” but an
applicant “need not demonstrate a total deprivation of
livelihood or a total withdrawal of all economic
opportunity in order to demonstrate harm amounting to
persecution.” In re T-Z-, 24 I. & N. Dec. at 170, 173.
“[W]hether a given economic sanction constitutes
persecution turns on its ‘impact’ on the victim.” Huo
Qiang Chen v. Holder, 773 F.3d 396, 405 (2d Cir. 2014).
“[A]n asylum applicant must offer some proof” of income or
net worth “or any other facts that would make it possible .
. . to evaluate h[er] personal financial circumstances in
relation to the [government’s imposition of an economic
disadvantage].” Guan Shan Liao v. U.S. Dep’t of Justice,
293 F.3d 61, 70 (2d Cir. 2002).
Qiao admitted that she did not have any proof that the
factory was the only place that she and her family could work
in China, and she did not provide any financial information
from the relevant time period in the form of affidavits,
testimony, or bank records. Accordingly, Qiao failed to
satisfy her burden of proving that the threat of job loss 4 used to coerce her into terminating her pregnancies would
have been sufficiently severe if carried out to rise to the
level of persecution. See In re T-Z-, 24 I. & N. Dec. at
169; see also Guan Shan Liao, 293 F.3d at 70. Therefore, she
did not establish that her abortions in 1983 and 1991 were
forced so as to constitute past persecution. See 8 U.S.C.
§ 1101(a)(42)(B); see also Xiu Fen Xia, 510 F.3d at 165.
Corruption Claim
The agency also did not err in finding that Qiao failed
to satisfy her burden of demonstrating past persecution on
account of her claim that she reported government corruption
because she failed to submit sufficient corroborating
evidence. “The testimony of the applicant may be sufficient
to sustain the applicant’s burden without corroboration, but
only if the applicant satisfies the trier of fact that the
applicant’s testimony is credible, is persuasive, and refers
to specific facts sufficient to demonstrate that the
applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see
also Chuilu Liu v. Holder, 575 F.3d 193, 196-97 (2d Cir.
2009). “In determining whether the applicant has met [her]
burden, the trier of fact may weigh the credible testimony
along with other evidence of record. Where the trier of fact
determines that the applicant should provide evidence that 5 corroborates otherwise credible testimony, such evidence must
be provided unless the applicant does not have the evidence
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17-336 Qiao v. Sessions BIA Wright, IJ A205 883 049 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 22nd day of June, two thousand eighteen.
PRESENT: JON O. NEWMAN, DENNIS JACOBS, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________
LANPING QIAO, Petitioner,
v. 17-336 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Keith S. Barnett, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Erica B. Miles, Senior Litigation Counsel; Anthony O. Pottinger, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Lanping Qiao, a native and citizen of the
People’s Republic of China, seeks review of a January 5, 2017,
decision of the BIA affirming a March 16, 2016, decision of
an Immigration Judge (“IJ”) denying her asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Lanping Qiao, No. A205 883 049 (B.I.A. Jan.
5, 2017), aff’g No. A205 883 049 (Immig. Ct. N.Y. City Mar.
16, 2016). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). Qiao argues only that she
established her eligibility for asylum based on her claims of
past persecution on account of two abortions she had under
China’s family planning policy, and a detention and beating
she suffered for reporting corruption by local government
officials. The applicable standards of review are well
established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. 2 Holder, 562 F.3d 510, 513 (2d Cir. 2009). As discussed below,
we find no error in the agency’s conclusion that Qiao failed
to meet her burden of proof.
Family Planning Claim
A petitioner is eligible for asylum if she suffered past
persecution on account of her “race, religion, nationality,
membership in a particular social group, or political
opinion.” 8 U.S.C. § 1158(b)(1)(B)(i). “[A] person who has
been forced to abort a pregnancy . . . shall be deemed to
have been persecuted on account of political opinion.”
8 U.S.C. § 1101(a)(42)(B); see also Xiu Fen Xia v. Mukasey,
510 F.3d 162, 165 (2d Cir. 2007). “An abortion is not
‘forced’ . . . unless the threatened harm for refusal would,
if carried out, be sufficiently severe that it amounts to
persecution.” In re T-Z-, 24 I. & N. Dec. 163, 169 (B.I.A.
2007). The agency did not err in finding that Qiao failed
to satisfy her burden of demonstrating that her abortions
were “forced.”
Qiao admitted that family planning officials did not
physically force her to terminate her pregnancies in 1983
and 1991. Rather, she asserted that the family planning
officials at the government factory where her family worked
used a threat of job loss, i.e., economic persecution, to 3 “force” her to end her pregnancies.
In order for economic harm to constitute persecution,
the harm must be “severe,” such that it would “constitute a
threat to an individual’s life or freedom,” but an
applicant “need not demonstrate a total deprivation of
livelihood or a total withdrawal of all economic
opportunity in order to demonstrate harm amounting to
persecution.” In re T-Z-, 24 I. & N. Dec. at 170, 173.
“[W]hether a given economic sanction constitutes
persecution turns on its ‘impact’ on the victim.” Huo
Qiang Chen v. Holder, 773 F.3d 396, 405 (2d Cir. 2014).
“[A]n asylum applicant must offer some proof” of income or
net worth “or any other facts that would make it possible .
. . to evaluate h[er] personal financial circumstances in
relation to the [government’s imposition of an economic
disadvantage].” Guan Shan Liao v. U.S. Dep’t of Justice,
293 F.3d 61, 70 (2d Cir. 2002).
Qiao admitted that she did not have any proof that the
factory was the only place that she and her family could work
in China, and she did not provide any financial information
from the relevant time period in the form of affidavits,
testimony, or bank records. Accordingly, Qiao failed to
satisfy her burden of proving that the threat of job loss 4 used to coerce her into terminating her pregnancies would
have been sufficiently severe if carried out to rise to the
level of persecution. See In re T-Z-, 24 I. & N. Dec. at
169; see also Guan Shan Liao, 293 F.3d at 70. Therefore, she
did not establish that her abortions in 1983 and 1991 were
forced so as to constitute past persecution. See 8 U.S.C.
§ 1101(a)(42)(B); see also Xiu Fen Xia, 510 F.3d at 165.
Corruption Claim
The agency also did not err in finding that Qiao failed
to satisfy her burden of demonstrating past persecution on
account of her claim that she reported government corruption
because she failed to submit sufficient corroborating
evidence. “The testimony of the applicant may be sufficient
to sustain the applicant’s burden without corroboration, but
only if the applicant satisfies the trier of fact that the
applicant’s testimony is credible, is persuasive, and refers
to specific facts sufficient to demonstrate that the
applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii); see
also Chuilu Liu v. Holder, 575 F.3d 193, 196-97 (2d Cir.
2009). “In determining whether the applicant has met [her]
burden, the trier of fact may weigh the credible testimony
along with other evidence of record. Where the trier of fact
determines that the applicant should provide evidence that 5 corroborates otherwise credible testimony, such evidence must
be provided unless the applicant does not have the evidence
and cannot reasonably obtain the evidence.” 8 U.S.C.
§ 1158(b)(1)(B)(ii).
Qiao claimed that local government officials detained
and beat her because she planned to report their failure to
compensate her sister for the destruction of her home during
a flood. The only corroborating evidence Qiao submitted to
support this claim was a handwritten leave slip from her
office granting her 20 days leave for a brain injury. The
agency did not err in requiring additional corroboration
given that this document did not corroborate how Qiao suffered
the injury and omitted any mention of the other injuries Qiao
claimed to have suffered, such as a two-inch cut on her arm,
bruising all over her body, and a bleeding mouth. See Chuilu
Liu, 575 F.3d at 196-98.
The agency properly identified the missing evidence,
noting that Qiao failed to submit evidence of the flood and
resulting destruction of her sister’s house, statements from
her sister or brother-in-law, statements from the other
families who did not receive compensation for their destroyed
homes, or a statement from the lawyer she consulted about
obtaining the compensation for her sister. See Chuilu Liu, 6 575 F.3d at 198-99. The IJ provided Qiao an opportunity to
explain her failure to present this evidence, but she could
not compellingly do so. See Majidi v. Gonzales, 430 F.3d 77,
80 (2d Cir. 2005). Accordingly, the agency did not err in
finding that Qiao failed to satisfy her burden of proof as to
past persecution based on her exposure of government
corruption. See 8 U.S.C. § 1158(b)(1)(B)(ii); see also
Chuilu Liu, 575 F.3d at 196-98.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court