2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-13-2008

Cao v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2968

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEAL

FOR THE THIRD CIRCUIT

 

No. 06-2968

 

JIAPENG CAO; JI FEN HUANG;

CARRIE CAO,

Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

 

On Petition for Review from an Order of the

Board of Immigration Appeals

(INS-1: A98-166-705;

INS-1: A98-166-706;

INS-1: A98-166-707)

Immigration Judge: Hon. R. K. Malloy

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 9, 2008

BEFORE: SMITH, HARDIMAN and COWEN, Circuit Judges

(Filed: May 13, 2008)

 

OPINION

 

COWEN, Circuit Judge.

Petitioner, Jiapeng Cao (“Cao”), asks this Court to review the BIA’s finding that
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he (along with his wife and daughter who are included on his asylum application), failed

to meet his burden of showing past persecution in China as well as the finding that he

failed to demonstrate a well-founded fear of future persecution if he is returned to China. 

For the following reasons, we will deny the petition for review. 

I.

In 1989, Cao began attending an underground Christian church while in China. In

April 1994, Cao was at a church gathering at a house when police officers arrived. The

officers arrested Cao. Cao was then required to report to a detention center every day for

three months for several hours. During these sessions at the detention center, Cao was

forced to write confessions with respect to his religious beliefs. He was allowed to go

home after these sessions each day. Cao asserted that the purpose of these sessions was

an attempt to brainwash him with respect to his religion. After three months, Cao was

released from the requirement of attending these sessions. Subsequently, Cao found it

difficult to find a job in China.

In 1995, Cao moved to Trinidad & Tobago. Cao had some family members living

in Trinidad & Tobago. Subsequently, Ji Fen Huang arrived in Trinidad & Tobago in

1997. Cao knew Huang in China because they attended the same church. While in

Trinidad & Tobago, Cao married Huang. In April 1998, they had a daughter, Carrie Cao. 

Carrie Cao is a citizen of Trinidad & Tobago. All three were baptized in Trinidad &

Tobago.

Cao worked in, and eventually owned a restaurant in Trinidad & Tobago. He
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continued to attend a Christian church while in Trinidad & Tobago. Cao asserted that he

was under surveillance by Chinese authorities in Trinidad & Tobago due to his Christian

faith. Specifically, he alleged that Chinese embassy officials would take photos of church

celebrations and display them at the embassy. Cao also asserted that he was robbed

several times. Cao alleged that his family was on a Chinese “watch list.” He argued that

he would be persecuted if his family returned to China. Nevertheless, Cao’s wife and

daughter returned to China at one point to visit his wife’s mother. They remained in

China for twenty days. Additionally, Cao went to the Chinese embassy in Trinidad &

Tobago to renew his passport. 

Cao arrived in the United States in 2003. After overstaying his visa, he filed an

application for asylum, withholding of removal and for relief under the Convention

Against Torture (“CAT”) based on his religion. 

The IJ did not make an explicit adverse credibility determination at the removal

hearing. Rather, the IJ criticized Cao for failing to have his sister, who lived in New

Jersey, appear at the hearing and corroborate his allegations. Next, the IJ noted that Cao

was allowed to go home everyday during the three-month period he was required to go

the detention center, and that he was not physically harmed by the authorities. The IJ also

stated that Cao was not required to attend these sessions after the three-month period

ended. Furthermore, the IJ explained that Cao’s testimony with respect to Chinese

officials spying on him while in Trinidad & Tobago was only first raised at the removal

hearing. Additionally, the IJ noted that Cao went to the Chinese embassy without
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incident, and that his wife returned to China to visit her mother also without incident. 

Based on these circumstances, the IJ determined that Cao failed to show past persecution

and failed to establish that he would suffer future persecution if he returned to China. 

The IJ ordered Cao and his wife returned to China, and their daughter returned to

Trinidad & Tobago. 

On appeal to the Board of Immigration Appeals (“BIA”), the BIA stated that Cao

failed to demonstrate past persecution in China. Furthermore, the BIA determined that

Cao failed to demonstrate a well-founded fear of future persecution on account of his

Christian faith if he was returned to China. The BIA specifically noted the fact that his

wife and daughter had returned to China without any problems, and that Cao had renewed

his passport while in Trinidad & Tobago at the Chinese embassy also without incident. 

The BIA ordered all of the respondents removed to Trinidad & Tobago. Cao timely filed

a petition for review. 

II.

We have jurisdiction to review a final order of removal pursuant to 8 U.S.C.

§ 1252. Where the BIA adopts the findings of the IJ and discusses some of the bases for

the IJ’s decision, we have authority to review the decisions of both the BIA and the IJ. 

See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Whether the applicant has met

his burden of establishing eligibility for asylum is a factual determination reviewed under

the substantial evidence standard. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). 

If substantial evidence supports the decision below, we will affirm “unless any reasonable
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adjudicator would be compelled to conclude to the contrary” under the circumstances. 8

U.S.C. § 1252(b)(4)(B).

III.

An applicant for asylum has the burden of establishing that he is unable or

unwilling to return to his home country because of past persecution or a well-founded fear

of future 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). To establish asylum

eligibility based on past persecution, an alien must show that he suffered harm rising to

the level of persecution on account of a statutorily protected ground, and that it was

committed by government forces or forces the government is unwilling to control. 

See Gao, 299 F.3d at 272. Nevertheless, if the alien cannot show past persecution, he

may still establish a well-founded fear of future persecution by showing a subjective fear

of persecution, and that a reasonable person in the alien’s circumstances would fear

persecution if returned to the country in question. See Zubeda v. Ashcroft, 333 F.3d 463,

469 (3d Cir. 2003). Persecution is defined as “extreme conduct,” such as “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 include

all treatment that our society regards as unfair, unjust or even unlawful or

unconstitutional.” Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d Cir. 2003) (internal

quotation marks and citation omitted). 

In this case, the IJ did not err in concluding that Cao had not suffered past
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persecution as we have defined that term for these purposes. See Fatin, 12 F.3d at 1240. 

Substantial evidence supports the findings that the incidents described by Cao did not rise

to the level of past persecution, and we are not compelled to conclude to the contrary. 

Cao makes several arguments in an attempt to show that the IJ and BIA erred with respect

to deciding his past persecution claim. First, Cao asserts that the IJ erred by stating that

without physical harm, Cao was not entitled to asylum. We disagree with Cao’s

assessment of the IJ’s decision. We have previously noted that physical persecution is no

longer a required element to establish persecution. See Li v. Att’y Gen. of United States,

400 F.3d 157, 166 (3d Cir. 2005). Nevertheless, in this case, the IJ did not deny Cao’s

claim of past persecution based solely on his failure to show physical persecution. 

Rather, the IJ examined the totality of Cao’s circumstances. The lack of physical

persecution was but one factor considered by the IJ. Second, Cao asserts that the IJ erred

in relying on the fact that Cao was not formally baptized until he arrived in Trinidad &

Tobago, thereby diminishing his asylum claim. However, as previously stated, the IJ did

not make an adverse credibility determination with respect to Cao’s religious beliefs. 

Instead, the IJ determined that the incidents described by Cao did not rise to the level of

past persecution. 

 Substantial evidence in the record also supports the finding that Cao failed to

show a well-founded fear of future persecution if returned to China. Indeed, Cao asserted

that he and his wife were on a Chinese “watch list,” yet his wife and daughter returned to

China and remained there for twenty days without incident. Cao asserts that the BIA
 1

 Because Cao failed to satisfy the standard for asylum, he necessarily fails to meet the

standard for withholding of removal. See Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d

7

erred in relying on this evidence because his fear of persecution based on his religion is

tied to his biological family, as opposed to his marital family. Cao principally relies on

Vente v. Gonzales, 415 F.3d 296 (3d Cir. 2005), to support his position. Cao’s reliance

on Vente is misplaced under these circumstances. In Vente, we stated that the BIA’s

reliance on the fact that Vente’s family members remained in Columbia and that they

have not suffered any harm was misplaced. See id. at 302. We noted that the petitioner

did not claim persecution on account of kinship ties, nor a fear of persecution on account

of his membership in a particular social group or that his family members were ever

targeted in the same way he was. See id. To the contrary, with respect to Cao’s claim of

persecution, it is based on his Christian faith. Cao’s wife is Christian. Cao even admitted

during the removal hearing that his wife attended the same underground church while

they both lived in China. Additionally, Cao stated that he believed his wife was on the

same Chinese “watch list” as he was. Therefore, the BIA’s reliance on his wife returning

to China without incident was plainly appropriate under these circumstances. 

Furthermore, as noted by the BIA, Cao went to the Chinese embassy in Trinidad &

Tobago to update his passport also without incident. This undercuts Cao’s theory that he

would be persecuted if he returned to China. The BIA’s decision with respect to Cao’s

claim of future persecution was based on substantial evidence, and we are not compelled

to conclude to the contrary.1
Cir. 2003). Cao’s claim for protection under the CAT is also rejected. An applicant is

entitled to withholding of removal under the CAT if he shows that it is more likely than

not that he will be tortured if removed to the proposed country. See 8 C.F.R.

§ 1208.16(c)(2). Based on this record, the decision to deny Cao CAT relief was based on

substantial evidence, and we are not compelled to conclude to the contrary. 

 2

 To the extent that Cao’s claim of persecution in Trinidad & Tobago remains an issue,

the denial of this claim was based on substantial evidence. See, e.g. Fatin, 12 F.3d at

1240 (noting that persecution is an extreme concept that does not encompass all treatment

that is regarded as unfair, unjust or even unlawful or unconstitutional). Additionally, we

note that Cao has withdrawn his claim that the BIA erred in designating Trinidad &

Tobago as the country of removal for all of the Petitioners. 

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III.

For the foregoing reasons, the petition for review is denied.2