Wang v. Ashcroft

99 F. App'x 820

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 1, 2004
• Docket: No. 02-74089
• Status: Published

Opinions

MEMORANDUM

**

Yongzhi Wang, a native and citizen of the People’s Republic of China, petitions for review of the Bureau of Immigration Appeals’ (“BIA’s”) final order affirming the Immigration Judge’s (“IJ’s”) decision denying his applications for asylum,¹ withholding of deportation and relief under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and affirm.

‘When the BIA adopts an IJ’s findings and reasoning, we review the IJ’s opinion as if it were the opinion of the BIA.” Singhr-Kaur v. INS, 183 F.3d 1147, 1150 (9th Cir.1999). Because the IJ failed to make “an explicit adverse credibility finding, we must assume that Wang’s factual contentions are true.” See Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir.2000). Thus, taking Wang’s testimony as true, we review the IJ’s decision to deny asylum under the substantial evidence standard, and may reverse it only if the evidence presented is such that a reasonable factfinder would be compelled to conclude that the requisite fear of persecution exists. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

The IJ’s findings that neither a single incident or cumulative incidents rose to the level of past persecution are supported by substantial evidence. See Avetovar-EUsseva v. INS, 213 F.3d 1192, 1197 (“[I]ncidents of hostility alone do not amount to [past] ‘persecution’ ... within the meaning of the statute.”). Although both Wang and his wife had been fired from their jobs for practicing Falun Gong, Wang failed to establish the severity of the economic deprivation he suffered. See Ubau-Marenco v. INS, 67 F.3d 750, 755 (9th Cir.1995), overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir. 1996); see also Kovac v. INS, 79 F.3d 908 (9th Cir.1969). Because Wang left China three months after he was fired, there was no evidence that Wang could not have obtained alternate employment. Moreover, his wife remained in their home and their son was able to attend school, albeit a lesser one than he would have attended had the Wangs not been Falun Gong practitioners. Additionally, Wang failed to provide specific testimony about the weekly interrogation sessions that he attended that could have elevated this harassment to the level of persecution.

Because Wang did not establish past persecution, he was not entitled to a presumption of future persecution. The IJ’s finding that Wang did not have a well-founded fear of persecution if returned to China is supported by substantial evidence. Wang failed to provide specific and detailed testimony which would establish both a subjective and an objective fear of future persecution. See Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir.1992). Wang admitted that he no longer practiced Falun Gong and would not practice if he returned to China as long as the practice there remained illegal. His reason for no longer practicing — a fear of spies in the United States who would report his activities back to the Chinese and cause harm to his family — seems implausible. As the IJ noted, the Chinese government was aware that Wang’s wife was a former Falun Gong practitioner. Although she had lost her job, she remained in the family home and had not been physically harmed. Furthermore, the IJ found that if Wang was truly fearful that spies in the United States could harm his family in China, Wang would never be able to practice Falun Gong even if granted asylum.

Based on Wang’s abstract testimony about his involvement with Falun Gong, coupled with his implausible reason for not practicing Falun Gong in the United States and lack of knowledge of and attachment to its principles, the IJ concluded that Wang was not a true follower of the movement. Even if he had been from 1994-1998, the State Department’s 1999 Country Reports on Human Rights Practices for China indicates that the Chinese government persecutes those who publicly protest the ban on Falun Gong, the movement’s leaders, and individuals who continue to practice Falun Gong and refuse to recant their beliefs. Thus, because Wang testified he will not practice Falun Gong as long as it remains illegal, the IJ found that his return to China poses no risk to his safety.

Because Wang failed to establish a well-founded fear of persecution on account of religion or political opinion, the IJ properly found that he could not meet the more stringent standard for withholding of deportation. See INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Astrero v. INS, 104 F.3d 264, 265 (9th Cir.1996).

Finally, the IJ found that Wang presented no evidence which established that it would be more likely than not that he would be tortured upon return to China. See 8 C.F.R. § 208.16(b)(2); Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir.2000). Thus, substantial evidence supports the IJ’s decision to deny Wang relief under the Convention Against Torture. See Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003).

PETITION DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . Although Wang’s asylum claim would have been pretermitted as filed more than one year after entry, the IJ allowed Wang’s claim to proceed because the Chinese government’s 1999 ban on the practice of Falun Gong constituted a sufficiently changed circumstance. See 8 U.S.C. § 1158(a)(2)(B), (D).