Quanxing Yang v. U.S. Attorney

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 24, 2018
• Docket: 17-14870
• Status: Unpublished

Opinion

Case: 17-14870 Date Filed: 09/24/2018 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14870 Non-Argument Calendar ________________________

Agency No. A209-239-683

QUANXING YANG,

Petitioner,

versus

U.S. ATTORNEY,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(September 24, 2018)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 17-14870 Date Filed: 09/24/2018 Page: 2 of 12

Quanxing Yang seeks review of a final order of the Board of Immigration

Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of his application

for asylum pursuant to the Immigration and Nationality Act (“INA”) § 208(a), 8

U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C.

§ 1231(b)(3), and withholding of removal under the United Nations Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(“CAT”), 8 C.F.R. § 208.16(c). The IJ and BIA determined that Yang was

ineligible for asylum because he was firmly resettled in Peru, and they found that

he failed to meet his burden for withholding of removal or CAT relief. On appeal,

Yang argues that he was not firmly resettled in Peru, that he has a well-founded

fear of persecution in China, and that he met the burdens for withholding of

removal and CAT relief.

I. STANDARDS

We review only the decision of the BIA, unless the BIA adopts the IJ’s

decision. Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). When the BIA

explicitly agrees with the findings of the IJ, we will review both decisions to the

extent of the agreement. See Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th

Cir. 2010). Here, the BIA did not adopt the IJ’s decision but agreed with the IJ’s

conclusions regarding Yang’s firm resettlement in Peru, as well as his failure to

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meet the burdens for withholding of removal and CAT relief. Thus, we review both

decisions to that extent. See id.

We review legal issues presented in a petition for review de novo. Id. We

review factual findings under the substantial evidence test. Adefemi v. Ashcroft,

386 F.3d 1022, 1026–27 (11th Cir. 2004) (en banc). Under that test, “[w]e ‘must

affirm the BIA’s decision if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.’” Id. at 1027 (quoting

Najjar, 257 F.3d at 1283–84). We view the evidence in the light most favorable to

the agency’s decision and draw all reasonable inferences in favor of that decision.

Id. Factual findings “may be reversed by this [C]ourt only when the record

compels a reversal; the mere fact that the record may support a contrary conclusion

is not enough to justify a reversal of the administrative findings.” Id.

II. BACKGOUND

Yang is a native and citizen of China. In 1991, when Yang was 13, he and

his family left China for Peru. Yang attended school and then worked as a

businessman in Peru until entering the United States in 2016. According to Yang,

he left Peru because he was targeted by the gangs there due to the fact that he is

Chinese. In his credible fear interview, Yang described several incidents in which

gang members in Peru robbed him or his home or threatened him. Yang did not

report these incidents to the police because he believed that the gangs and the Peru

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police were working together. Yang stated that, on one occasion, policemen

“blackmailed” him “about [his] personal ID [card]” in order to extort money from

him. Yang also testified that the gang members threatened to kill him if he reported

any of their crimes to the police. Regarding his legal status in Peru, Yang stated in

his credible fear interview that he received permission from Peru to remain there

legally. When asked if his status in Peru was as a permanent resident or a long term

resident, Yang stated, “It is a long term residence.” The interviewer then asked

Yang when his residence in Peru would expire. Yang replied, “2020.”

At the merits hearing before the IJ, Yang reiterated his fear of returning to

Peru due to the gangs. Regarding his status there, he testified that he had “a

permanent resident card from Peru” and confirmed that he had lived there for

twenty-five years before entering the United States. Yang’s attorney tried to clarify

Yang’s statements during his credible fear interview regarding his Peru status

expiring in 2020. Yang’s attorney asked, “[I]n your prior interview with the

asylum officer, you had said that you had a long-term residence but not a

permanent residence, and that your status actually would end at the year 2020. Do

you recall that?” Yang replied, “Yeah. I remember. I think they’re all the same,

right? Long-term and permanent. What is the difference?” After a short exchange

between the IJ and Yang’s counsel, Yang supplemented his answer: “Can I add

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something—for the previous question? The ID card is an alien card from the

government. You had to pay a fee each year. Otherwise, it would be revoked.”

Yang also testified about a trip that he took to China from Peru in 2007.

During this trip, Yang attended several underground church gatherings. Police

raided one of these gatherings, arresting Yang and the other attendees. The police

pushed, shoved, and kicked Yang and the other attendees during the arrest in order

to make them move faster. Yang was detained for eleven days and interrogated

several times. According to Yang, the interrogations were noisy and took place at

night, making it difficult for him to sleep. Yang’s parents were able to bribe

officials to release him. Upon his release, police warned Yang that he risked being

jailed and separated from his family if he continued to attend underground

religious meetings. Additionally, in the days following Yang’s release, the police

went to his home in search of religious materials. Yang testified that he did not

suffer any major injuries from the detention. He nevertheless fears that if he returns

to China, he will again be arrested for practicing his religion. He testified that he

sought asylum in the United States because it is “the country of religious freedom”

and all of his family members live here.

Although the IJ found Yang credible, the IJ denied Yang’s petition for

asylum, withholding of removal, and CAT relief. The IJ first found that Yang was

firmly resettled in Peru and concluded that Yang was therefore ineligible for

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asylum. The IJ further concluded that, even if Yang were not statutorily barred

from seeking asylum, Yang failed to show that he was entitled to asylum under the

INA. The IJ stated that he believed that Yang was not seeking asylum from Peru.

The IJ then found that Yang’s allegations regarding his eleven-day detention in

China did not rise to the level of past persecution. Additionally, the IJ found that

Yang’s fear of future persecution in China based on his religion was not

objectively reasonable and that Yang failed to establish that it was more likely than

not that he would be tortured upon return to China.

The BIA affirmed the IJ’s denial of Yang’s petition. The BIA first agreed

with the IJ’s determination that Yang was ineligible for asylum due to his firm

resettlement in Peru. The BIA then affirmed the IJ’s conclusion that Yang failed to

establish that he was entitled to withholding of removal or relief under CAT. The

BIA also noted that the record was a bit inconsistent regarding whether Yang was

seeking asylum from Peru as well as from China. Nevertheless, the BIA concluded

that any error regarding the IJ’s failure to address Yang’s fear of returning to Peru

is harmless because Yang was ordered removed to China.

III. DISCUSSION

The Attorney General has the authority to grant asylum to an alien who

meets the INA’s definition of “refugee.” INA § 208(b)(1)(A), 8 U.S.C.

§ 1158(b)(1)(A). A refugee is:

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[A]ny 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 him 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.

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). However, an applicant is

statutorily ineligible for asylum if he was “firmly resettled in another country prior

to arriving in the United States.” INA § 208(b)(2)(A)(vi), 8 U.S.C.

§ 1158(b)(2)(A)(vi). “An alien is considered to be firmly resettled if, prior to

arrival in the United States, he or she entered into another country with, or while in

that country received, an offer of permanent resident status, citizenship, or some

other type of permanent resettlement . . . .” 8 C.F.R. § 1208.15. An exception to

this rule exists if the alien can show either (1) that his entry into that country “was

a necessary consequence” of his flight from persecution, he only remained there

long enough to arrange further travel, and he did not establish significant ties to

that country, or (2) that the conditions of his residency in that country were “so

substantially and consciously restricted by the authority of the country” that he was

not in fact resettled. Id. § 1208.15(a)–(b).

An alien is entitled to withholding of removal if he can show that his “life or

freedom would be threatened in that country because of the alien’s race, religion,

nationality, membership in a particular social group, or political opinion.” INA

§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). The applicant must show that it is more 7 Case: 17-14870 Date Filed: 09/24/2018 Page: 8 of 12

likely than not that he will be persecuted or tortured upon returning to his country.

Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005).

Persecution is an “extreme concept,” requiring more than mere harassment

or “a few isolated incidents of verbal harassment or intimidation.” Id. at 1231

(quoting Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir. 2000)). For example,

in Djonda v. United States Attorney General, 514 F.3d 1168 (11th Cir. 2008), we

held that the evidence did not compel a conclusion that the petitioner had suffered

past persecution. Id. at 1174. In that case, the petitioner was detained in a small cell

with twelve other people for thirty-six hours, unable to sleep, beaten multiple

times, including once with a belt, forced to drink a “very dirty liquid” and eat

something “very bad,” and hospitalized for two days after the detention. Id. at

1171. Additionally, in Kazemzadeh v. United States Attorney General, 577 F.3d

1341 (11th Cir. 2009), we held that a four-day detention, including a five-hour

interrogation and beating, accompanied by post-incarceration monitoring, did not

compel a finding that the petitioner had suffered past persecution. Id. at 1353–54.

On the other hand, we have held that a petitioner suffered past persecution

on account of his religion where officials interrupted a church service in the

petitioner’s home, confiscated bibles, detained the petitioner for seven days,

slapped him, threatened to beat him with a bar, and handcuffed him to an iron bar

overnight in the rain, which caused a high fever and sore throat. Shi v. U.S. Att’y

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Gen., 707 F.3d 1231, 1235–37 (11th Cir. 2013). In concluding that Shi had

suffered past persecution, we distinguished the facts of Shi from those in Djonda,

noting that Djonda involved less than a weeklong detention, did not involve the

interruption of a church service or confiscation of religious material, and did not

involve as “singularly cruel a tactic” as handcuffing the petitioner to a bar outside

in the rain overnight. Id. at 1239. We stated that “perhaps” the most important fact

in compelling the finding of past persecution in Shi was the fact that Shi was

handcuffed to the bar. Id. at 1237. We noted that Shi developed a high fever and

sore throat and was only released after he did not recover and the police feared that

he would die in custody. Id.

We affirm the denial of Yang’s petition for asylum and withholding of

removal. First, substantial evidence supports the finding that, after leaving China,

Yang firmly resettled in Peru before entering the United States. According to

Yang’s own testimony, he lived, attended school, and worked as a businessman in

Peru for twenty-five years. Regarding his legal status there, it is true that Yang

described his status as long term rather than permanent in his credible fear

interview; he also answered the interviewer’s question regarding when his status

would expire by saying “2020.” But at the hearing before the IJ, Yang testified that

he had “a permanent resident card from Peru.” When asked about his contradictory

answer during his credible fear interview, Yang explained that he does not think

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that there is a difference between long term and permanent residence. Yang also

stated that his status does “expire” every year; however, he can pay a fee each year

to renew his card. Given the totality of Yang’s testimony regarding his status in

Peru, substantial evidence supports the finding that Yang obtained an offer of

permanent residence in Peru. And Yang does not offer evidence that the

government in Peru severely restricted his status such that he was not in fact firmly

resettled there. Accordingly, the IJ and BIA correctly concluded that Yang is

statutorily barred from seeking asylum from China.

Regarding Yang’s claims for withholding of removal to China, substantial

evidence supports the IJ’s and BIA’s conclusion that Yang failed to show that it is

more likely than not that he will be persecuted upon returning to China. First,

substantial evidence supports the finding that Yang’s eleven-day detention does

not amount to past persecution. Although Yang testified that the police were rough

with him and the other attendees during the arrest, Yang testified that he only

suffered minor injuries from the incident. Regarding the fact that Yang was

interrogated and kept awake at night by the noisy interrogations, this Court has

held that seemingly more severe detentions that involved multiple beatings and

interrogations did not compel a finding of past persecution. See Djonda, 514 F.3d

at 1174 (holding that a thirty-six-hour detention, during which the petitioner was

beaten multiple times, resulting in a two-day hospitalization, did not compel the

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conclusion that the petitioner suffered persecution); Kazemzadeh, 577 F.3d at 1353

(holding that a four-day detention, during which the petitioner was interrogated

and beaten, did not compel the conclusion that the petitioner suffered persecution).

Given that Yang was not subjected to severe interrogation tactics, was not

seriously injured, and was allowed to leave China without incident after his

release, the record in this case does not compel a finding of past persecution. Cf.

Shi, 707 F.3d at 1235–37 (holding that the record compelled a finding of past

persecution where the petitioner was detained for seven days, handcuffed to an iron

bar overnight in the rain, and only released when the police feared that the

petitioner would die in custody).

Likewise, the record does not compel a finding that it is more likely than not

that Yang would be persecuted on account of his religion if he returned to China.

In making this determination, the IJ relied on several country reports regarding

religious liberty in China. See Djonda, 514 F.3d at 1175 (“[T]he Board is ‘entitled

to rely heavily on’ country reports.” (quoting Reyes–Sanchez v. U.S. Att’y Gen.,

369 F.3d 1239, 1243 (11th Cir. 2004))). Some of these reports note that, in certain

areas in China, local authorities allow or at least do not interfere with the activities

of unregistered religious groups. The IJ also noted that, despite his participation in

an underground religious service, Yang was able to leave China without incident

after his eleven-day detention and that it has been many years since Yang was

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detained. Given this evidence, the record does not compel the conclusion that Yang

would more likely than not suffer hardships that amount to persecution on account

of his religion upon his return to China.

We also affirm the IJ’s and BIA’s conclusion that Yang failed to establish

that he is entitled to relief under CAT. To obtain CAT relief, an applicant must

show that it is more likely than not that a government official or person acting in

an official capacity will torture him or aid or acquiesce in his torture if he is

removed to the proposed country. See Najjar, 257 F.3d at 1303. Given that

substantial evidence supports the determination that it is not more likely than not

that Yang will suffer persecution upon his return to China, substantial evidence

also supports the IJ’s and BIA’s determination that Yang is not more likely than

not to be tortured by the Chinese government upon his return to China.

Finally, Yang argues that the IJ erred by failing to analyze whether Yang

established a well-founded fear of persecution if he returned to Peru. We agree

with the BIA’s conclusion that any error in this regard is harmless because the IJ

ordered that Yang be removed to China, not Peru. For all of these reasons, we deny

Yang’s petition.

PETITION DENIED.