Nen Ying Wang v. JOHN ASHCROFT, Attorney General of the United States

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
NO. 03-3057
NEN YING WANG,
Petitioner
v.
JOHN ASHCROFT, Attorney General
of the United States; JAMES ZIGLAR,
Commissioner, U.S. Immigration and
Naturalization Service,
Respondents
Petition for Review of an Order
of the Board of Immigration Appeals
(A78-420-250)
Submitted Under Third Circuit LAR
34.1(a) May 3, 2004
Before: SLOVITER, FUENTES and
BECKER, Circuit Judges
(Filed: May 19, 2004)
Joseph C. Hohenstein
Nationalities Service Center
Philadelphia, PA 19107
Attorney for Petitioner
Peter D. Keisler
Assistant Attorney General
Civil Division
David V. Bernal
Assistant Director
Office of Immigration Litigation
M. Jocelyn Lopez Wright
Senior Litigation Counsel
Office of Immigration Litigation
U.S. Department of Justice
Washington, DC 20044
Attorneys for Respondent
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Petitioner Nen Ying Wang, a
citizen of China, seeks review of the order
of the Board of Immigration (BIA)
vacating the decision of the Immigration
Judge (IJ) that had granted Wang’s
application for withholding of removal
under the Convention Against Torture
(CAT) and section 2242 of the Foreign
Affairs Reform and Restructuring Act of
1998, Pub. L. No. 105-277, 112 Stat. 2681,
2681-822 (1998) (FARRA). Wang
contends that the BIA violated FARRA’s
implemen ting regu lations when it
undertook de novo review of his case,
rather than reviewing it for clear error, and
failed to defer to the IJ’s factual
determination that Wang was more likely
than not to face torture if returned to
China. Wang seeks reversal of the BIA’s
decision or a remand to the BIA with
instructions regarding the proper standard
of review. For the reasons set forth below,

-- 1 of 5 --

2
we will deny the Petition for Review.
I.
Wang came to the United States in
2000 at the age of sixteen without a valid
visa or entry documents. The Immigration
and Naturalization Service (INS)
immediately detained him at Kennedy
Airport upon arrival because he presented
a passport that was not lawfully issued to
him. The INS commenced removal
proceedings and placed him in a juvenile
detention center. Although Wang
conceded removability, in accordance with
8 C.F.R. section 1208.16 (c)(2) (2004),
Wang sought protection under the CAT on
the ground that it was “more likely than
not” that he would be tortured by the
Chinese government if removed to China
because he left China illegally. On May
15, 2001, after an evidentiary hearing, the
IJ granted Wang’s request for withholding
of removal pursuant to the CAT. On June
16, 2003, the BIA vacated the IJ’s order
and ordered Wang to be removed to China.
Wang timely filed this Petition for Review.
II.
We have jurisdiction to review the
BIA’s final order of removal under INA
Section 242, 8 U.S.C. § 1252, and the
BIA’s denial of Wang’s claim for CAT
protection under FARRA §§ 2242(b), (d).
We review the BIA’s legal determinations
de novo, subject to established principles
of deference, Chevron v. Nat. Res. Def.
Council, 467 U.S. 837, 844 (1984), but
defer to the BIA’s factual findings unless
“any reasonable adjudicator would be
compelled to conclude to the contrary.”
INA § 24 2 (b)(4)(B), 8 U.S .C.
§1252(b)(4)(B).
Wang contends that the BIA
committed error when it undertook a de
novo review of the record because 8
C.F.R. section 1003.1(d)(3)(1) prohibits
the BIA from engaging in a “de novo
review of findings of fact determined by
an immigration judge” and directs that the
BIA shall only review the IJ’s findings for
clear error. 8 C.F.R. § 1003.1(d)(3)(1).
However, section 1003.1(d)(3)(1), on
which Wang relies, does not apply to
“appeals filed before September 25, 2002.”
67 Fed. Reg. at 54,905 (codified at 8
C.F.R. § 1003.3(f)). Because the INS filed
its appeal with the BIA on May 17, 2001,
more than one year before the September
25, 2002 deadline, section 1003.1(d)(3)(1)
is inapplicable in this case. The BIA thus
did not err in conducting a de novo review.
Wang argues in the alternative that
we should eschew the traditional
substantial-evidence standard, bypass the
BIA’s decision, and review the IJ’s
decision. Wang urges us to do so on the
grounds that the BIA allegedly
misapprehended the proper burdens of
proof and that its review of the record was
“inadequate and cursory” as compared to
the IJ’s more “extensive and well-
reasoned” decision in his favor. Pet’r.
Reply Br. at 1-2 n.1. As to the burdens of
proof, Wang argues that the BIA did not
inquire whether Wang was “more likely
than not” to face torture if returned to
China as required under 8 C.F.R. §
1208.16(c)(2), but instead employed a
more stringent standard of proof that

-- 2 of 5 --

3
required proof that Wang personally would
have “fall[en] into a category of
immigrants” who would be imprisoned
and/or tortured. A.R. at 3. Wang contends
that because there is more than a fifty
percent chance that he would be detained
and tortured upon returning to China,
withholding of removal is mandatory
under the CAT.
At the outset, we reject Wang’s
contention that the BIA misapplied the
proper burdens of proof. Not once, but
twice, the BIA stated that Wang bore the
burden of “establishing that he will ‘more
likely than not’ be tortured” upon his
return to China. A.R. at 2 (quoting 8
C.F.R. § 208.16(c)(2)). As to the
comparative “strength” of the IJ’s decision
against the BIA’s decision, the fact that the
IJ issued a lengthier oral decision than the
BIA’s written decision does not without
more provide this court a basis to ignore
the BIA’s decision and review the IJ’s
decision. Because the BIA did not commit
an error of law, we review the BIA’s
decision and its de novo factfinding rather
than the IJ’s decision and its factfinding.
In reviewing the merits of the
BIA’s decision, we note that the standard
for invocation of the CAT is more
stringent than the standard for granting
asylum. The regulations define “torture”
as:
[A]ny act by which severe
pain or suffering, whether
physical or mental, is
intentionally inflicted on a
person for such purposes as
obtaining from him or her or
a third person information
or a confession, punishing
him or her for an act he or
she or a third person has
committed or is suspected of
having committe d, o r
intimidating or coercing him
or her or a third person, or
for any reason based on
discrimination of any kind,
when such pain or suffering
is inflicted by or at the
instigation of or with the
consent or acquiescence of a
public official or other
person acting in an official
capacity.
8 C.F.R. § 208.18(a)(1). We will sustain
the BIA’s decision if substantial evidence
in the record supports its decision. Zubeda
v. Ashcroft, 333 F.3d 463, 471 (3d Cir.
2003).
The BIA relied on four sources of
information in reaching its conclusion that
Wang had not proven that he was more
likely than not to face torture upon his
return to China. First, the State
Department’s 2000 Country Report on
Chinese Human Rights Practices noted
that some prisoners within specifically
identified groups, such as political
dissidents, protestors, Falun Gong
supporters, female migrant workers,
Tibetans and other national minorities,
were subjected to torture. Second, the
State Department’s 1998 China Profile of
Asylum Claims and Country Conditions
reported that returning illegal immigrants

-- 3 of 5 --

4
were generally fined between $600 and
$6,000 and many of these persons are
subjected to lengthy detention or “re-
education,” but made no reference to
torture. Third, an excerpt of Ko-Lin
Chin’s 1999 book, Smuggled Chinese,
which was submitted by Wang, stated that
second-time illegal immigrants may be
sentenced to a one year prison sentence in
an executive or administrative prison. See
also A.R. at 221 (2000 State Department
Country Report). Lastly, the Canadian
Embassy’s Canadian Refugee Board
Report recounted interviews with returning
illegal immigrants to Changle, Fujian
Province, where Wang would be returned,
in which the immigrants stated that they
had only been detained two days and the
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 argues that he proved that he
was more likely than not to face torture
based on the 1998 and 2000 State
Department Reports regarding China’s
general violation of the human rights of its
prisoners and its specific policy of forcing
returning illegal immigrants to pay fines
from $600 to $6,000 and/or face detention.
The requirement to pay a fine does not fit
within the definition of “torture.”
Although Wang also states that returning
illegal immigrants without the means to
pay excessive fines are sometimes
detained and tortured, he has not submitted
any evidence in support of that contention.
Critically, Wang has failed to explain why
he expects that he would be more likely
than not to fall within the categories of
prisoners identified by the State
Department who would be subjected to
torture.
Wang argues that the 2000 Report
provides a non-exhaustive list of persons
who might be tortured and should not be
read as an exclusive list. However, he
fails to provide any objective evidence
why he, as a first-time illegal immigrant,
would be more likely than not to be treated
similarly. Although the BIA noted that the
2000 Report stated that returning illegal
immigrants may face fines and that
second-time illegal immigrants or political
dissidents may face re-education or labor
camps, Wang has provided no evidence –
as is his burden of proof – to establish that
he personally would be more likely than
not to be tortured upon return.
Wang suggests that the BIA should
have assumed first-time returning
emigrants should have been included
within the list of groups likely to be
tortured because of the difficulty of
monitoring human rights violations in
China. Such an assumption would provide
automatic CAT protection to all persons
returned to China. While we certainly do
not intend to suggest our approval of a
practice in China of subjecting returning
emigrants to prosecution and subsequent
punishment, if existent, we are not in a
position to express a view on this matter.
Lacking a congressional directive to grant
the CAT claims from all Chinese
immigrants who allege the possibility of

-- 4 of 5 --

5
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.

-- 5 of 5 --