                                                                                                                           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Precedential or Non-Precedential: Precedential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


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                    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, Pub. L. No. 105-277, 112 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. 8 C.F.R. § 1003.1(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, 8 U.S.C. § 1252, 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, 467 U.S. 837, 844 (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       8 C.F.R. § 208.18(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, 333 F.3d 463, 471 (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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