Filed: Jun. 30, 2010
Latest Update: Feb. 21, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 09-3827 _ YONG DI CHEN, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (BIA No. A79-319-079) (U.S. Immigration Judge: Honorable Miriam Mills) _ Submitted Pursuant to Third Circuit LAR 34.1(a) June 23, 2010 Before: SCIRICA, JORDAN and VANASKIE, Circuit Judges. (Filed: June 30, 2010) _ OPINION OF THE COURT _ PER CURIAM. Yong Di Chen,
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 09-3827 _ YONG DI CHEN, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (BIA No. A79-319-079) (U.S. Immigration Judge: Honorable Miriam Mills) _ Submitted Pursuant to Third Circuit LAR 34.1(a) June 23, 2010 Before: SCIRICA, JORDAN and VANASKIE, Circuit Judges. (Filed: June 30, 2010) _ OPINION OF THE COURT _ PER CURIAM. Yong Di Chen, p..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3827
___________
YONG DI CHEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A79-319-079)
(U.S. Immigration Judge: Honorable Miriam Mills)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 23, 2010
Before: SCIRICA, JORDAN and VANASKIE, Circuit Judges.
(Filed: June 30, 2010)
___________
OPINION OF THE COURT
________
PER CURIAM.
Yong Di Chen, proceeding pro se, petitions for review of a Board of Immigration
Appeals (“BIA”) decision dismissing his appeal of an Immigration Judge’s (“IJ”) decision
denying his applications for relief from removal. We will deny the petition for review.
Chen is a native and citizen of China who came to the United States in 2000. In
2001, Chen filed an application for asylum and withholding of removal. A notice to
appear was issued shortly thereafter charging that Chen was subject to removal for being
present in the United States without having been admitted or paroled. Through counsel,
Chen conceded that he is removable as charged. He also sought relief under the
Convention Against Torture (“CAT”).
Chen testified that he was married in 1995 and that he has one daughter who was
born in 1996. His wife and daughter live in China. Chen stated that, after his daughter
was born, family planning officials forced Chen’s wife to have an IUD inserted. Chen
hired a private doctor to remove the IUD and his wife became pregnant. She hid at her
mother’s home. In May 1997, six cadres arrived at his mother-in-law’s house and took his
wife away. Chen testified that he confronted cadres in his village and they ignored him.
He went home and his wife returned and told him that she had an abortion. Chen stated
that the doctor gave his wife an abortion certificate. Two weeks later, Chen’s wife was
required to have an IUD inserted. Chen testified that he does not want to return to China
because he was persecuted there and he would not be able to have more children.
The IJ concluded that Chen was not credible, noting, among other things, that the
abortion certificate appeared to have been recently printed and that the background
evidence did not reflect that involuntary abortion certificates were in fact issued. The IJ
also did not admit into evidence documents Chen had submitted because they were not
certified pursuant to 8 C.F.R. § 287.6. The IJ thus denied Chen’s applications for asylum
2
and withholding of removal.1 The IJ also denied CAT relief, noting that Chen had not
shown that it was more likely than not that he would be tortured if removed.
The BIA adopted and affirmed the IJ’s decision insofar as the IJ found Chen not
credible. Chen filed a petition for review. We granted the Government’s unopposed
motion to remand the proceedings to the BIA based upon Liu v. Ashcroft, 372 F.3d 529,
533 (3d Cir. 2004), in which we held that it was error to exclude an abortion certificate for
lack of certification under § 287.6 because the document could be authenticated by other
means. The BIA vacated its decision and remanded the case to the IJ to give Chen the
opportunity to authenticate his documents and for the IJ to make a new credibility finding.
On remand, the matter was assigned to a different IJ, who issued an interlocutory
decision stating that Chen had submitted authentication certificates for certain documents,
but not the abortion certificate. Noting that there was widespread fabrication of birth
control documents from Fujian Province and that the authenticity of the abortion
certificate was crucial to Chen’s claim, the IJ ordered Chen to submit all evidence of his
attempts to authenticate that document. After receiving Chen’s response, the IJ denied his
asylum claim. The IJ did not make an adverse credibility finding but concluded that Chen
1
The IJ further stated that, if Chen was credible, he would have had to find past
persecution but he would have denied asylum based on a fundamental change in
circumstances. The IJ explained that Chen did not have a well-founded fear of
persecution because he was no longer in violation of China’s family planning policies and
he could now have another child under those policies because more than four years had
passed since the birth of his daughter.
3
had failed to adequately corroborate his claim that his wife had an involuntary abortion
and had thus failed to satisfy his burden of proof. The IJ stated that Chen had not
authenticated the abortion certificate or shown any failed attempt to do so. The IJ also
denied Chen’s claims for withholding of removal and protection under the CAT.
The BIA dismissed Chen’s appeal, stating that the issue regarding the authenticity
of the abortion certificate was not outcome determinative of his case. Citing Lin-Zheng v.
Attorney General, 557 F.3d 147 (3d Cir. 2009) (en banc), the BIA explained that aliens
whose spouses suffered persecution in the coercive population control context are not per
se eligible for asylum, although they may show past persecution or a well-founded fear of
persecution on account of their own “other resistance” to a coercive population control
program. The BIA noted that Chen did not argue that he suffered past persecution or has a
well-founded fear due to his own resistance to a coercive population control program. The
BIA also rejected Chen’s argument that, if he has more children, he will be forcibly
sterilized, noting that Chen did not then have two children and that his wife was not
pregnant. The BIA concluded that Chen had not met his burden of proof for asylum or
withholding of removal. This petition for review followed.2
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the BIA’s factual
determinations for substantial evidence and the BIA’s legal conclusions de novo. Lin-
2
The BIA also upheld the denial of CAT relief. Chen does not pursue this claim in his
petition for review.
4
Zheng, 557 F.3d at 155. Under the substantial evidence standard of review, factual
determinations must be upheld unless “any reasonable adjudicator would be compelled to
conclude to the contrary.” See
id. (citations omitted).
As recognized by the BIA, we addressed the definition of a “refugee” in Lin-Zheng
and held that, based on the ordinary meaning of the statutory language, only the person
who has been forced to submit to an involuntary abortion or sterilization, has been
persecuted for failure or refusal to undergo such a procedure, or has a well-founded fear of
that occurring in the future is a refugee. 557 F.3d at 155-57. We stated that spouses, like
Chen, remain eligible for relief in their own right provided that they qualify as a refugee
based upon their own persecution.
Id. at 157. We explained that a spouse can claim
refugee status if he can show actual persecution for resisting a country’s coercive family
planning policy or a well-founded fear of future persecution for doing so.
Id.
In his brief, Chen argues that he is eligible for asylum based on his wife’s forced
abortion. These arguments are foreclosed by Lin-Zheng. Chen does not argue that he was
harmed for his own resistance to China’s family planning policies or that he has a well-
founded fear of future persecution based on his own resistance. To the contrary, Chen
testified that the cadres ignored him when he confronted them. Chen also disputes a
statement by the BIA that the abortion certificate undermines his claim that the abortion
was forced. Because the BIA correctly held that Lin-Zheng precludes Chen’s claim, it is
unnecessary to address these arguments.
5
Chen also challenges the BIA’s conclusion that he did not establish a well-founded
fear of persecution based on his intention to have more children if he returns to China.
Chen first argues that the IJ did not address whether he had a well-founded fear of future
sterilization and that the BIA engaged in impermissible fact finding in concluding that he
did not establish such a fear based on his intention to have more children. We disagree.
As noted by the Government, the BIA assumed that the fact alleged by Chen (that he
planned to have more children) was true, but concluded that his intention was insufficient
to meet his burden to establish a well-founded fear of persecution.
Chen further argues that substantial evidence does not support the conclusion that
he does not have a well-founded fear of persecution. The BIA decided that Chen had not
established a well-founded fear of persecution based on his intention to have a second
child. We agree with the Government that Chen has not pointed to evidence establishing
that family planning officials would seek to target him for forced sterilization if he
returned to China. Chen has not shown that the record compels the conclusion that he has
a well-founded fear of persecution.3
3
We also agree with the Government that Lin v. Gonzales, 445 F.3d 127 (2d Cir.
2006), relied upon by Chen, is distinguishable. In Lin, the IJ found that an alien, who had
been threatened with forced sterilization after the birth of her second child, would have a
well-founded fear of persecution if she became pregnant again, but found her future
pregnancy speculative. The court of appeals found that substantial evidence did not
support the conclusion that a future pregnancy was speculative where the alien already
had two children and stated that she intended to have more.
Id. at 135-36. Unlike in Lin,
Chen has never been threatened with forced sterilization and the BIA did not conclude
that he would have a well-founded fear of persecution if his wife became pregnant;
6
Accordingly, we will deny the petition for review.
instead, the BIA noted that sterilization may occur after the birth of a second child and
stated that Chen did not meet his burden of proof by simply stating his intention to have a
second child.
7
