                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-4-2005

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Precedential or Non-Precedential: Precedential

Docket No. 03-3761




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                                       PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ____________

                      NO. 03-3761
                     ____________

                    YAN LAN WU

                                          Petitioner
                           v.

 JOHN ASHCROFT, ATTORNEY GENERAL OF THE
             UNITED STATES

                     ____________

 On Appeal from the United States Department of Justice
             Board Of Immigration Appeals
                 BIA No. A77 340 613
                    ____________

                Argued October 26, 2004

BEFORE: NYGAARD, AMBRO and VAN ANTWERPEN,
               Circuit Judges

                (Filed January 4, 2005)
Marco Pignone, III, Esq. (Argued)
Wilson & Pignone
117 South 17th Street
Suite 908
Philadelphia, PA 19103

Counsel for Petitioner

David E. Dauenheimer, Esq. (Argued)
Richard M. Evans, Esq.
Douglas E. Ginsburg, Esq.
Lyle D. Jentzer, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

Counsel for Respondent
                      ____________

                           OPINION
                         ____________

VAN ANTWERPEN, Circuit Judge

      Before us is a Petition for Review of a decision by the
United States Department of Justice Board of Immigration
Appeals (“the Board”) affirming the conclusion of an
Immigration Judge that an applicant did not qualify for
asylum or withholding of removal because of alleged

                              2
religious persecution within the People’s Republic of China.
The question before us is whether the denial of an asylum
application is supported by substantial evidence where an
applicant, in an initial interview, articulated a fear of
persecution from ‘people’ but, in later testimony before an
Immigration Judge, indicated it was police and local officials
who had persecuted her. For the foregoing reasons, we shall
grant this Petition to the extent that we remand for
clarification of certain findings.




                               I

       Yan Lan Wu is a native and citizen of China,1 and is a
Christian. She entered the United States on January 30, 2001
via an airline flight originating in Sao Paolo, Brazil. 2 When
she refused to board an airplane bound for Thailand, and it
was discovered that she had no travel documentation, she was
taken into custody by immigration officials. When questioned
by an immigration officer, Ms. Yan stated, through an
interpreter, that she feared she might be incarcerated if she
returned to China because she was a Christian. She was asked


   1
     Throughout this opinion, the People’s Republic of China
shall be abbreviated simply as “China.”
    2
      Ms. Yan tendered a falsified Thai passport to board the
airplane. However, this passport was taken from her prior to
boarding and was not returned.

                               3
who was harassing her because of her religious beliefs, and
replied “only the people in the village.” The officer found
Ms. Yan inadmissible and processed her for removal.

        Ms. Yan applied for asylum, withholding of removal,
and request for relief under Article 3 of the United Nations
Convention Against Torture on July 31, 2001, and later
testified before Immigration Judge Rosalind Malloy in
support of her application on January 23, 2002. Ms. Yan
testified that she and her family spread the message of
Christianity to the people of her home city. They distributed
religious literature, and held Christian activities such as Bible
study, prayer, and the singing of religious songs, usually
within the family home. On or about September 15, 2000, it
was discovered that Ms. Yan’s family was practicing
Christianity in an otherwise Buddhist area. The police were
called and broke up a religious service taking place in the
family home. Ms. Yan’s father was arrested, as were three or
four others. Upon their release, several of the detainees
complained of being beaten while in custody.

       Despite the hostility of the non-Christian population,
Ms. Yan and her family resumed holding religious activities.
On September 28, 2000, on returning from a relative’s home
out of town, Ms. Yan and her family were informed that many
of the Christian parishioners in her village were being arrested
by village officials and that these officials wanted to arrest her
family. They also learned that village officials had already
entered her home. Ms. Yan and her family returned to the
relative’s home, where they remained for approximately one
month. When they inquired about returning to their home

                                4
village, the family was informed that their house had been
sealed and that village officials were prepared to arrest them
if the family was caught. Thereafter, Ms. Yan left China,
arriving in the United States approximately three months later.

        The Immigration Judge found that Ms. Yan failed to
establish she had suffered persecution at the hands of the
Chinese government. Thus, Ms. Yan’s requests for asylum,
withholding of removal, and protection under the Convention
Against Torture were denied, and she was ordered removed to
China. Ms. Yan appealed this decision to the Board, arguing
that she had established a history of past persecution, had a
well-founded fear of future persecution, and that the
Immigration Judge erred in determining that any hardship she
and her family had suffered was at the hands of local
civilians, not the Chinese government. On August 28, 2003,
the Board affirmed the Immigration Judge’s decision without
opinion pursuant to 8 C.F.R. § 1003.1(e)(4), thus making the
Immigration Judge’s decision the final agency determination.
Ms. Yan filed a motion to reconsider the Board’s
determination, which was denied. This appeal followed.




                              II

       We have jurisdiction to review a final order of removal
pursuant to 8 U.S.C. § 1252(a)(1). This Court’s jurisdiction
over final orders of removal generally leads us to review the
decision of the Board. However, in cases in which the Board
merely adopts the Immigration Judge’s opinion, we will

                              5
review that Immigration Judge’s decision. Gao v. Ashcroft,
299 F.3d 266, 271 (3d Cir. 2002). Our scope of review in this
case is narrow: we will affirm any findings of fact supported
by substantial evidence. Abdille v. Ashcroft, 242 F.3d 477,
483 (3d Cir. 2001). We are thus bound by the administrative
findings of fact unless a reasonable adjudicator would be
compelled to arrive at a contrary conclusion. 8 U.S.C. §
1254(b)(4)(B) (1999); see also Abdille v. Ashcroft, 242 F.3d
at 483. Finally, this Court gives Chevron deference to the
Board’s reasonable statutory interpretations. Chevron U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43
(1984). However, “deference is not due where findings and
conclusions are based on inferences or presumptions that are
not reasonably grounded in the record, viewed as a whole.”
Balasubramanrim v. Ashcroft, 143 F.3d 157, 162 (3d Cir.
1998).




                              III

       As a threshold matter, we address the Government’s
contention that we are without jurisdiction to hear this appeal
because Ms. Yan has not exhausted the administrative
remedies available to her. The Government asserts that Ms.
Yan “intimates that the Immigration Judge’s reliance on the
[airport] statement was misplaced” but that “this argument
was never raised before the Immigration Judge or on appeal to
the Board, and thus [Ms. Yan] has failed to exhaust her
administrative remedies.”


                              6
        8 U.S.C. § 1252(d) requires an alien to raise and
exhaust all remedies available to her in order to preserve her
right to appellate review of a final order of removal.
Abdulrahman v. Ashcroft, 330 F.3d 587, 594-5 (3d Cir. 2003).
In her Notice of Appeal to the Board, Ms. Yan argued that
“the Immigration Judge ignored the fact that [her] father was
jailed and tortured by the Chinese government as an
underground Christian in China, and erred in finding that
[she] doesn’t have a fear of [the] Chinese government but the
local people.” (R. at 110.) 3 Additionally, Ms. Yan contended
in her brief in support of her Notice of Appeal to the Board
that she has “presented sufficient evidence to the effect that
she has face[d] past persecution and will face future
persecution on account of her Christian faith,” that “police
raided [her] home,” and that her “home was under
surveillance.” (R. at 81-88.) As we recently held in Bhiski v.
Ashcroft, 373 F.3d 363, 367-68 (3d Cir. 2004), so long as an
immigration petitioner makes some effort, however
insufficient, to place the Board on notice of a straightforward
issue being raised on appeal, a petitioner is deemed to have
exhausted her administrative remedies. In Bhiski, the
petitioner failed to file a brief in support of his Notice of
Appeal. We found that when a claim is not so complex as to
require a supporting brief, simply putting the Board on notice
through a Notice of Appeal is sufficient. While the
Government is technically correct that Ms. Yan did not
explicitly argue that the Immigration Judge erred in


    3
     “R. at” refers to the specified page within the certified
administrative record.

                              7
considering only her airport interview, she did contend in her
Notice of Appeal that the Immigration Judge’s conclusion is
not supported by substantial evidence within the record. The
Board, therefore, was put on notice that there was a claim of
error hovering around the Immigration Judge’s findings and,
consequently, her exclusive reliance on the airport interview,
during its review de novo. While it is always preferable for a
petitioner to articulate his or her argument before the Board in
an unambiguous manner, we are confident that Ms. Yan’s
Notice of Appeal and brief in support of her application made
the Board aware of what issues were being appealed.4 Thus,
Ms. Yan has satisfactorily exhausted the remedies that were
available to her, and we reject the Government’s argument
that we are without jurisdiction to hear this appeal.




                              IV

      We turn now to the merits of Ms. Yan’s case.
Congress has delegated to the Attorney General the power to




  4
    This conclusion should not be interpreted as a relaxation of
the requirement of administrative exhaustion. Rather, it is a
conclusion that, in this particular case, there was sufficient
information available to the Board, as in Bhiski, to put it on
notice of the issue being raised by Ms. Yan.

                               8
grant asylum to an alien who meets the definition of refugee.5
8 U.S.C. § 1158(b)(1) (1999). An alien seeking asylum must
demonstrate “(1) an incident, or incidents, that rise to the level
of persecution; (2) that is [or are] ‘on account of’ one of the
statutorily-protected grounds; and (3) is [or are] committed by
a government or forces a government is either ‘unable or
unwilling’ to control.” See Abdulrahman v. Ashcroft, 330
F.3d at 592 (quoting Gao v. Ashcroft, 299 F.3d at 272). If
past persecution is not established, an alien must, in order to
seek asylum, establish a subjective “well-founded fear” of
future persecution that is objectively reasonable. See Gao v.
Ashcroft, 299 F.3d at 272. Therefore, aliens have the burden
to establish they are eligible for asylum. See Id. In contrast to
the discretionary relief available to asylum seekers, an alien is
entitled to withholding of removal if his life or freedom
would be threatened because of race, religion, nationality,
membership in a particular social group, or political opinion.
See 8 U.S.C. § 1231(b)(3)(A) (1999). To qualify for
withholding of removal, an applicant bears a higher burden:
she must demonstrate that it is more likely than not that she


   5
     A refugee is a person who is outside any country of such
person’s nationality or, in the case of a person having no
nationality, is outside any country in which such person last
habitually resided, and who is unable or unwilling to return to,
and is unable or unwilling to avail himself 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. See 8 U.S.C. § 1101(a)(42)(A) (1999)

                                9
will face persecution if she is removed. Miah v. Ashcroft, 346
F.3d 434, 439 (3d Cir. 2003).6

        The Immigration Judge found M s. Yan to be entirely
credible when she represented she was a Christian (R. at 136),
and that her testimony was credible. (R. at 141.) The
Immigration Judge then determined that Ms. Yan was not at
risk of being persecuted by the Chinese government or agents
it could not control upon return to her home village: “This is
just resentment by one religious group in the village against
another religious group . . . [;] it is not the government that is
sponsoring scorn and bad treatment of [M s. Yan]...” 7 (R. at
137-38.) For this reason, the Immigration Judge determined
that Ms. Yan had not met her burden for asylum, and
consequently did not meet the heavier burden for withholding
of removal. (R. at 141.)

        The Immigration Judge’s finding that Ms. Yan was not
at risk of religious persecution from the Chinese government
or its agents stems from statements made by Ms. Yan during


   6
     Because Ms. Yan’s Petition for Review before this Court
only seeks review of the Board’s decision dismissing her denial
of asylum and withholding of removal, we shall not further
consider her application under the Convention Against Torture.
       7
      Ms. Yan correctly notes that the Board has found that
persecution may be found even where harm is caused by persons
a government is unable or unwilling to control. Matter of S-A-,
Int. Dec. 3433 (BIA 2000).

                               10
her initial airport interview. (R. at 421-25.) Specifically, the
Immigration Judge draws attention to the following exchange:

“Q: Have you ever been harra[sed, t]hreatened or harmed by
the Chinese p[olice, g]overnment or military for any reason
because of your religi[ous b]eliefs or for any other reason?

A: No, only the people in the village.” 8

(R. at 423.) Later, she was asked:

“Q: Will you face any other harm other than the scorn of
villagers?

A: No.”

(R. at 425.) Based on these statements, the Immigration
Judge found that it was local civilians, not the Chinese
government or its agents, who might persecute Ms. Yan for
her religious beliefs. While stating Ms. Yan’s later hearing
testimony was credible (R. at 141), the Immigration Judge
concluded that she had not met her burden to establish either
past or future persecution by the Chinese government or its
agents. (Id.) What is striking about this conclusion is that the
Immigration Judge, while finding Ms. Yan to be a credible
witness, did not consider her repeated reference to “police,”


   8
     The curious editing of the immigration officer’s question
above is the result of the passage being obscured by the page’s
orientation in the administrative record.

                               11
“arrest,” “village officials,” or “village authority” throughout
her hearing testimony as words evincing state-sponsored
persecution. (R. at 235-75.) If the Immigration Judge did
consider this testimony, she did not explain why this
testimony was discounted.

        Ms. Yan contends that her statements made during the
airport interview cannot be the sole basis for the Immigration
Judge’s conclusions, because the words “people” and
“villagers” are ambiguous and could refer to village officials
rather than unaffiliated townspeople.9 The Immigration
Judge’s findings will be upheld to the extent that they are
“supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” Abdulrahman v.
Ashcroft, 330 F.3d at 597.

       From the record before us, we cannot say that the
Board’s determination that it was local villagers, and not
government officials, who were persecuting Ms. Yan and her
fellow parishioner, is supported by substantial evidence.
During her testimony, Ms. Yan made several statements


    9
       We have held that the Board may rely upon an airport
interview where it represents an accurate account of the
persecution suffered in a home country. Balasubramanrim v.
Ashcroft, 143 F.3d at 162-64. However, in situations (such as
in this case) where an alien speaks through an interpreter and
uses an ambiguous statement that is not further inquired into by
the immigration officer, such interviews may be entitled to less
weight. Id.

                               12
alleging as such:

“The local village officials saw that we had meetings all the
time, and they were all Buddhists.” (R. at 243.)

“...The village called some police...the police came over...”
(Id.)

“The police came in, they pushed me to the ground, and told
us (indiscernible) to stay beside the walls, and then they saw
my father behind us, and they said I know it’s you, and you
are doing this (indiscernible) again.” (R. at 244.)

“[The police] came into our bedrooms and they find out the
bible, and they tore them, they tore the bible and messed up
all those things, and they also searched the house to see
whether or not there are other people inside the house.” (R. at
244-45.)

“My father said the police told them not to believe in Jesus
Christ, not to pass any (indiscernible). And my father did not
believe, so they hit my father with a stick on his back.” (R. at
246.)

“...In the morning on September 28th, the village authority,
village people wanted to arrest all the Christians in the
village.” (R. at 250.)

(See also R. at 251:6-7; R. at 253:6.) Of course, a reviewing
court cannot supersede an administrative agency’s findings
simply because an alternative finding could be supported by

                              13
substantial evidence. Krouchevski v. Ashcroft, 344 F.3d 670,
673 (7th Cir. 2003). 10 However where, as here, the
Immigration Judge finds a witness to be credible, but then
renders a decision that is contrary to that testimony without
explaining why, we cannot say at this point that such a
decision is supported by substantial evidence. The
Immigration Judge seized upon two statements made by Ms.
Yan at her airport interview and relied on them at the expense
of the entirety of her testimony that the Immigration Judge
appears to have deemed to be credible. We will not speculate
as to the reason for this inconsistency, but it should be
resolved and explained if the findings of the agency are to be
given deference.11 We recognize that United States
Immigration Judges and the Board play a vital role in the
immigration process, and that they are often inundated with
many cases that must be vetted under unforgiving deadlines.
However, given the record before us, we must respectfully
return this case to the agency for a determination of whether
the record, when taken as a whole, supports Ms. Yan’s
application for asylum.




   10
     Indeed, the Immigration Judge need not discuss each and
every piece of evidence presented by an asylum applicant when
rendering a decision, as long as that decision is substantially
supported. See Morales v. INS, 208 F.3d 323, 328 (1st Cir.
2000).
   11
      At oral argument, counsel suggested that there may be an
error in the hearing transcription.

                              14
                               V

        In addition to Ms. Yan’s application for asylum, the
Immigration Judge denied her application for withholding of
removal. Because the Immigration Judge found Ms. Yan
ineligible for asylum, her application under the higher
standard for withholding of removal was summarily
dismissed. We will grant M s. Yan’s Petition and remand to
the Board (which then may remand to the Immigration Judge)
for further, more specific findings of credibility and a full
determination of whether the administrative record, as a
whole (including her testimony before the immigration court),
provides substantial evidence in support of either granting or
refusing her applications for asylum and withholding of
removal. We stress that we are remanding because the
Immigration Judge found that Ms. Yan was credible, and at
the same time rejected portions of her testimony without
explanation. We express no opinion as to the ultimate
outcome and whether or not Ms. Yan has suffered or will
suffer mistreatment rising to the level of persecution.12

        The Petition for Review is therefore granted, and this
case is remanded to the Board for further consideration


       12
           The term “persecution” includes “threats to life,
confinement, torture, and economic restrictions so severe that
they constitute a threat to life or freedom.” Fatin v. I.N.S., 12
F.3d 1233, 1240 (3d Cir. 1993). It does not, however,
“encompass all treatment that our society regards as unfair,
unjust, or even unlawful or unconstitutional.” Id.

                               15
consistent with this opinion.

Yan Lan Wu v. John Ashcroft, No. 03-3761

NYGAARD, Circuit Judge, dissenting.

       I respectfully dissent because I do not believe the
record compels a conclusion that Petitioner has suffered—or
will suffer— mistreatment rising to the level of persecution.
Accordingly, remand to the Board is unnecessary and I would
deny the petition for review.

        The term “persecution” includes “threats to life,
confinement, torture, and economic restrictions so severe that
they constitute a threat to life or freedom.” Fatin v. I.N.S., 12
F.3d 1233, 1240 (3d Cir. 1993). It does not, however,
“encompass all treatment that our society regards as unfair,
unjust, or even unlawful or unconstitutional.” Id. The
IJ—relying on statements Petitioner made in her airport
interview—found that Petitioner had not demonstrated
mistreatment rising to the level of persecution. (A.R. at 137).
This finding is supported by substantial evidence. For
instance, during the airport interview, Petitioner stated that
she had not been harassed, threatened, or harmed by the
government of China or its military. (Id. at 423). She also
stated that if sent back to China she would be “treated badly
and scorned by the local people.” (Id. at 425). When asked
whether she would face any harm other than the scorn of the
villagers, she said “[n]o.” (Id.). Under our deferential
standard of review, we are not to disturb an IJ’s finding of
fact unless the evidence compels a conclusion contrary to that

                                16
which the IJ reached. Abdille v. Ashcroft, 242 F.3d 477,
483–84 (3d Cir. 2001). Although the evidence in this case
might support a conclusion that Petitioner has been
persecuted, it does not compel that conclusion. Thus, I would
uphold the IJ’s finding that no persecution occurred.

        Next, I disagree with the majority that Petitioner’s
airport interview is unreliable and therefore potentially
entitled to less weight. It is true we have cautioned against
over-reliance on inconsistencies between an airport interview
and an asylum applicant’s hearing testimony. See
Balasubramanrim v. Ashcroft, 143 F.3d 157, 162–63 (3d Cir.
1998). Caution is required because arriving aliens, hampered
by an inability to communicate in English and haunted by
traumatic memories, might have difficultly articulating their
circumstances with a high degree of consistency. Zubeda v.
Ashcroft, 333 F.3d 463, 476 (3d Cir. 2003). Thus, the manner
in which information is elicited during an airport interview is
critical to its probative value. Id. at 477. In the present case,
however, the record reveals a fair, careful, and relatively
thorough airport interview.

       In Balasubramanrim, 143 F.3d at 162, we found an
airport interview insufficiently reliable as evidence for several
reasons. The airport interview at issue was conducted in
English, and no translator was provided for the petitioner,
who was not fluent in English. Id. The transcript of the
interview was hand-written, leaving the Court unsure as to
how it was prepared or whether it was an accurate recitation
of the petitioner’s testimony. Id. And the petitioner was not
asked appropriate follow up questions, designed to elicit the

                               17
details of his asylum claim. Id. None of these problems
tainted Petitioner’s interview. Her interview was conducted
in Mandarin, Petitioner’s native language. (A.R. at 421).
Petitioner signed the typed transcript of the interview,
indicating that she had read it or— as is more likely—had it
read to her, and that it was a full and accurate record of her
interview. (Id. at 425). And, significantly, the immigration
official asked appropriate follow up questions, designed to
elicit the details of Petitioner’s claim. For instance, when
Petitioner said she feared being locked up, the immigration
official followed by asking who would lock her up. (Id. at
422). Although we must view with caution reliance on airport
interviews, the record before us reflects no reason why such
reliance was misplaced here. I do not believe, therefore, that
the IJ erred by considering the airport interview. Because
Petitioner’s statements in the airport interview were
appropriate for consideration, substantial evidence supports
the IJ’s finding that nothing rising to the level of persecution
has occurred.          I am sympathetic to the suffering
Petitioner has endured. Nevertheless, because we must afford
due respect to our standard of review, I would deny the
petition.




                              18
