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Wang v. Gonzales

April 27, 2005

NENG LONG WANG, PETITIONER
v.
ALBERTO GONZALES, ATTORNEY GENERAL OF THE UNITED STATES; MICHAEL CHERTOFF, SECRETARY OF DEPARTMENT OF HOMELAND SECURITY, RESPONDENTS



On Petition for Review of a decision and order of the Board of Immigration Appeals (BIA No. A77-935-836)

The opinion of the court was delivered by: Greenberg, Circuit Judge.

PRECEDENTIAL

Argued March 7, 2005

BEFORE: SCIRICA, Chief Judge, and ROTH and GREENBERG, Circuit Judges

OPINION OF THE COURT

I. FACTUAL AND PROCEDURAL HISTORY

This matter comes on before this court on a petition for review of a decision and order of the Board of Immigration Appeals ("BIA") dated May 11, 2004, denying petitioner Neng Long Wang ("Wang") asylum and withholding of removal and ordering his removal to China. *fn1 We set forth the background of the case in some detail. Wang, who was born in China on October 1, 1985, is the older of two children. His sister was born in February 1988. Before his sister was born, Wang's parents worked and earned approximately 200-400 yuan per month. At that time the family lived in a house with a bathroom, living room, dining room and kitchen. Wang's parents lack formal education and do not speak Mandarin Chinese, the language apparently used in governmental matters.

Though China has a one-child per family policy to control the size of its population, Wang's parents were unaware of the policy until after his sister was born, an event leading the Chinese government to fine the family for having a second child. The local government authority sent a notice to Wang's parents informing them of the imposition of a 20,000 yuan fine against them (approximately $2,400.00 as of 2005 exchange rates; 100 times their lowest estimated monthly salary) by reason of the birth of their second child. Wang, however, does not claim that the government imposed the fine on him or that he was responsible for its payment. Wang's parents could not afford to pay the fine and thus decided to flee. At that time the family left their village and split up, Wang going to live with his grandmother in one village while the remaining members relocated to another. The family, however, subsequently reunited and returned to its home.

Wang's father obtained permission to pay the fine by 1996 on an installment basis. Nevertheless, the government repeatedly subjected the Wang family household to property destruction and harassment because the fine remained unpaid. Thus, from the time of his sister's birth in February 1988 until the date of Wang's administrative hearing in these proceedings on October 31, 2000, governmental authorities made between ten and sixteen visits seeking payment of the fine. Wang testified, "every time they show up they always keep on asking us why don't we pay up the remaining balance and they start destroying, smashing our chairs and furnitures [sic]." AR at 174-75. *fn2 Yet the authorities' intrusions into the family's life had their limitations as neither Wang nor his sister had any trouble attending school, and the authorities never arrested, detained or fined Wang. Accordingly, it is clear that the authorities did not direct their actions at Wang.

Wang's father left China in 1992 to earn enough money to pay the fine. For three years, he worked in Argentina and sent money back to China to support his family and to pay the fine incrementally. Nevertheless Chinese government officials continued to visit the house, causing destruction and continuing to harass the family while Wang's father worked in Argentina. While Wang's father was in Argentina he was kidnapped, in response to which Wang's mother borrowed $10,000 from a bank, using the family home as collateral, to pay a ransom. Wang's father returned to China in 1995 but was not arrested or detained on his return. After Wang's father's return, the government continued to harass the family.

In 1996 government authorities presented the family with another notice reflecting the 20,000 yuan fine. This notice did not credit the family with payments already made on the fine. In that same year government officials sterilized Wang's mother and "totally destroyed" the family home. Id. at 179. The family, however, was able to recover blankets from the home and subsequently relocated, first to Wang's grandmother's house and then to a one-room home. The Wangs' previous residence was comprised of two stories and several rooms.

Wang's father later unsuccessfully attempted to leave China a second time in search of work. The family began to rely on an uncle's generosity to survive, but the uncle could not provide the family with enough money to continue to pay the fine. Eventually Wang's parents opened a snack bar business, but government authorities destroyed the equipment of the business late in 1998 and "started laughing on the way out." Id. at 183, 185-86.

Subsequently, with the help of smugglers, Wang physically arrived in the United States on December 3, 1999, at JFK International Airport where he was detained. Upon his arrival Wang applied for admission to the United States, but the immigration service denied that application and instead instituted administrative removal proceedings against him. The notice to appear served on him charged that he was not in possession of valid entry documents and that it was likely he would become a public charge if admitted. Wang admitted that the entry document charge was valid, but in an effort to prevent removal he applied for asylum, withholding of removal, and protection under the Convention Against Torture.

Wang fears that if he returns to China, the Chinese authorities will arrest him because he left the country illegally and the arrest could lead to the imposition of another 20,000 yuan fine. Because Wang's family lacks the ability to pay this amount, Wang fears that he will remain in custody if he returns to China. Wang's family hopes that he will be able to live safely in the United States and earn enough money so that the family can pay its debts.

An immigration judge held a hearing on Wang's application following which the judge issued a written decision and order dated November 7, 2000, denying Wang's application for asylum but granting his application for withholding of removal. The government appealed the decision and order of the immigration judge to the BIA to the extent it granted Wang's request for withholding of removal and Wang cross-appealed to the extent it ...


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