Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

5-19-2004

Wang v. Atty Gen USA Precedential or Non-Precedential: Precedential

Docket No. 03-3057

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Recommended Citation "Wang v. Atty Gen USA" (2004). 2004 Decisions. Paper 656. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/656

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. PRECEDENTIAL Peter D. Keisler Assistant Attorney General UNITED STATES COURT OF Civil Division APPEALS FOR THE THIRD CIRCUIT David V. Bernal Assistant Director Office of Immigration Litigation NO. 03-3057 M. Jocelyn Lopez Wright Senior Litigation Counsel Office of Immigration Litigation NEN YING WANG, U.S. Department of Justice Washington, DC 20044 Petitioner Attorneys for Respondent v.

JOHN ASHCROFT, Attorney General OPINION OF THE COURT of the United States; JAMES ZIGLAR, Commissioner, U.S. Immigration and Naturalization Service, SLOVITER, Circuit Judge. Respondents Petitioner Nen Ying Wang, a citizen of China, seeks review of the order of the Board of Immigration (BIA) Petition for Review of an Order vacating the decision of the Immigration of the Board of Immigration Appeals Judge (IJ) that had granted Wang’s (A78-420-250) application for withholding of removal under the Convention Against Torture (CAT) and section 2242 of the Foreign Submitted Under Third Circuit LAR Affairs Reform and Restructuring Act of 34.1(a) May 3, 2004 1998,

Stat. 2681, 2681-822 (1998) (FARRA). Wang Before: SLOVITER, FUENTES and contends that the BIA violated FARRA’s BECKER, Circuit Judges imple men ting regu lations when it undertook de novo review of his case, (Filed: May 19, 2004) rather than reviewing it for clear error, and failed to defer to the IJ’s factual determination that Wang was more likely Joseph C. Hohenstein than not to face torture if returned to Nationalities Service Center China. Wang seeks reversal of the BIA’s Philadelphia, PA 19107 decision or a remand to the BIA with instructions regarding the proper standard Attorney for Petitioner of review. For the reasons set forth below, we will deny the Petition for Review. INA § 24 2 (b)(4)(B), 8 U.S .C. §1252(b)(4)(B). I. Wang contends that the BIA Wang came to the United States in committed error when it undertook a de 2000 at the age of sixteen without a valid novo review of the record because 8 visa or entry documents. The Immigration C.F.R. section 1003.1(d)(3)(1) prohibits and Naturalization Service (I NS) the BIA from engaging in a “de novo immediately detained him at Kennedy review of findings of fact determined by Airport upon arrival because he presented an immigration judge” and directs that the a passport that was not lawfully issued to BIA shall only review the IJ’s findings for him. The INS commenced removal clear error.

(d)(3)(1). proceedings and placed him in a juvenile However, section 1003.1(d)(3)(1), on detention center. Although Wang which Wang relies, does not apply to conceded removability, in accordance with “appeals filed before September 25, 2002.” 8 C.F.R. section 1208.16 (c)(2) (2004), 67 Fed. Reg. at 54,905 (codified at 8 Wang sought protection under the CAT on C.F.R. § 1003.3(f)). Because the INS filed the ground that it was “more likely than its appeal with the BIA on May 17, 2001, not” that he would be tortured by the more than one year before the September Chinese government if removed to China 25, 2002 deadline, section 1003.1(d)(3)(1) because he left China illegally. On May is inapplicable in this case. The BIA thus 15, 2001, after an evidentiary hearing, the did not err in conducting a de novo review. IJ granted Wang’s request for withholding of removal pursuant to the CAT. On June Wang argues in the alternative that 16, 2003, the BIA vacated the IJ’s order we should eschew the traditional and ordered Wang to be removed to China. substantial-evidence standard, bypass the Wang timely filed this Petition for Review. BIA’s decision, and review the IJ’s decision. Wang urges us to do so on the II. grounds that the BIA allegedly We have jurisdiction to review the misapprehended the proper burdens of BIA’s final order of removal under INA proof and that its review of the record was Section 242,

, and the “inadequate and cursory” as compared to BIA’s denial of Wang’s claim for CAT the IJ’s more “extensive and well- protection under FARRA §§ 2242(b), (d). reasoned” decision in his favor. Pet’r. We review the BIA’s legal determinations Reply Br. at 1-2 n.1. As to the burdens of de novo, subject to established principles proof, Wang argues that the BIA did not of deference, Chevron v. Nat. Res. Def. inquire whether W ang was “more likely Council,

(1984), but than not” to face torture if returned to defer to the BIA’s factual findings unless China as required under 8 C.F.R. § “any reasonable adjudicator would be 1208.16(c)(2), but instead employed a compelled to conclude to the contrary.” more stringent standard of proof that

2 required proof that Wang personally would obtaining from him or her or have “fall[en] into a category of a third person information immigrants” who would be imprisoned or a confession, punishing and/or tortured. A.R. at 3. Wang contends him or her for an act he or that because there is more than a fifty she or a third person has percent chance that he would be detained committed or is suspected of and tortured upon returning to China, ha ving c om mitte d, o r withholding of removal is mandatory intimidating or coercing him under the CAT. or her or a third person, or for any reason based on At the outset, we reject Wang’s discrimination of any kind, contention that the BIA misapplied the when such pain or suffering proper burdens of proof. Not once, but is inflicted by or at the twice, the BIA stated that Wang bore the instigation of or with the burden of “establishing that he will ‘more consent or acquiescence of a likely than not’ be tortured” upon his public official or other return to China. A.R. at 2 (quoting 8 person acting in an official C.F.R. § 208.16(c)(2)). As to the capacity. comparative “strength” of the IJ’s decision against the BIA’s decision, the fact that the

(a)(1). We will sustain IJ issued a lengthier oral decision than the the BIA’s decision if substantial evidence BIA’s written decision does not without in the record supports its decision. Zubeda more provide this court a basis to ignore v. Ashcroft,

(3d Cir. the BIA’s decision and review the IJ’s 2003). decision. Because the BIA did not commit The BIA relied on four sources of an error of law, we review the BIA’s information in reaching its conclusion that decision and its de novo factfinding rather Wang had not proven that he was more than the IJ’s decision and its factfinding. likely than not to face torture upon his In reviewing the merits of the return to China. First, the State BIA’s decision, we note that the standard Department’s 2000 Country Report on for invocation of the CAT is more Chinese Human Rights Practices noted stringent than the standard for granting that some prisoners within specifically asylum. The regulations define “torture” identified groups, such as political as: dissidents, protes tors, Fa lun Gong supporters, female migrant workers, [A]ny act by which severe Tibetans and other national minorities, pain or suffering, whether were subjected to torture. Second, the physical or mental, is State Department’s 1998 China Profile of intentionally inflicted on a Asylum Claims and Country Conditions person for such purposes as reported that returning illegal immigrants

3 were generally fined between $600 and Critically, Wang has failed to explain why $6,000 and many of these persons are he expects that he would be more likely subjected to lengthy detention or “re- than not to fall within the categories of education,” but made no reference to prisoners identified by the State torture. Third, an excerpt of Ko-Lin Department who would be subjected to Chin’s 1999 book, Smuggled Chinese, torture. which was submitted by Wang, stated that Wang argues that the 2000 Report second-time illegal immigrants may be provides a non-exhaustive list of persons sentenced to a one year prison sentence in who might be tortured and should not be an executive or administrative prison. See read as an exclusive list. However, he also A.R. at 221 (2000 State Department fails to provide any objective evidence Country Report). Lastly, the Canadian why he, as a first-time illegal immigrant, Embassy’s Canadian Refugee Board would be more likely than not to be treated Report recounted interviews with returning similarly. Although the BIA noted that the illegal immigrants to Changle, Fujian 2000 Report stated that returning illegal Province, where Wang would be returned, immigrants may face fines and that in which the immigrants stated that they second-time illegal immigrants or political had only been detained two days and the dissidents may face re-education or labor Canadian officials concluded that the camps, Wang has provided no evidence – “[m]uch touted policies of prison as is his burden of proof – to establish that sentences and extensive reeducation he personally would be more likely than programs are apparently mostly not not to be tortured upon return. implemented” in the Fujian Province. A.R. at 369. Wang suggests that the BIA should have assumed first-time returning Wang argues that he proved that he emigrants should have been included was more likely than not to face torture within the list of groups likely to be based on the 1998 and 2000 State tortured because of the difficulty of Department Reports regarding China’s monitoring human rights violations in general violation of the human rights of its China. Such an assumption would provide prisoners and its specific policy of forcing automatic CAT protection to all persons returning illegal immigrants to pay fines returned to China. While we certainly do from $600 to $6,000 and/or face detention. not intend to suggest our approval of a The requirement to pay a fine does not fit practice in China of subjecting returning within the definition of “torture.” emigrants to prosecution and subsequent Although Wang also states that returning punishment, if existent, we are not in a illegal immigrants without the means to position to express a view on this matter. pay excessive fines are sometimes Lacking a congressional directive to grant detained and tortured, he has not submitted the CAT claims from all Chinese any evidence in support of that contention. immigrants who allege the possibility of

4 detention or imprisonment upon their removal to China, there is no reason for the BIA or this court to adopt such a rule. In addition, Petitioner takes issue with the BIA’s reliance on the Canadian Embassy’s Canadian Refugee Board Report, in which Canadian officials concluded that the “[m]uch touted policies of prison sentences and extensive reeducation programs are apparently mostly not implemented” in the Fujian Province. A.R. at 369. Wang contends that this report was unreliable because the Chinese government approved the interviews and likely manipulated the information to which the researchers were given access. Although the BIA’s reliance on this state-sanctioned report may be questionable, we find that the BIA’s decision is sufficiently substantiated by the 1998 and 2000 State Department Reports and therefore need not address the reliability of the Canadian Report. III. We conclude that the record evidence substantially supports the BIA’s judgment and thus we will deny the Petition for Review.

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